COURT OF APPEAL OF TANZANIA - LABOUR CASES REPORT, Volume 1

2023
Volume I
PUBLISHED BY:
International Labour Organization Dar es Salaam Country Office,
United Nations Road, Upanga,
P.O.BOX 9212,
Dar es Salaam Tanzania.
daressalaam@ilo.org
www.ilo.org
In Coraboration with:
High Court of Tanzania Labour Division,
02 Mpewani Road,
P.O.BOX 1619,
14108 Dar es Salaam Tanzania.
laborcourt@judiciary.go.tz
www.labourcourt@judiciary.tz
© The Judiciary of Tanzania
ISBN 978-9912-41-440-2
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take no responsibilities for any loss or damage suffered by any person as a result
of reliance upon the information contained herein.
FOREWORD
A just, efficient, and speedy labour dispute resolution system is a
mandatory requirement for any country that desires to build a viable
economy. In 2004, the Parliament of Tanzania enacted the Employment
and Labour Relations Act [Cap. 366 R.E. 2019]) (ELRA) and Labour
Institutions Act, 2004 Cap. 300 R.E. 2019 (LIA). These pieces of Labour
legislation codified the labour laws of Tanzania. They placed them under
one roof to avoid conflicting labour rules, the outcome of which would be
a fair and rapid settlement of labour disputes.
Codification of labour legislation, by itself, will not stabilize the dispute

resolution system of a country, especially where various levels of labour
courts churn out conflicting decisions and court orders. Codification of
labour legislation brought, in their wake, an array of labour courts, each
with the mandate, to resolve different categories of labour disputes. These
labour dispute resolution bodies include the Commission for Mediation
and Arbitration (CMA), the Labour Division of the High Court, High Court
Zones, and the Court of Appeal at the apex.
Section 50(1) of the LIA established the Labour Division of the High Court
of Tanzania as a Labour Court sitting above the CMA. The legislature
intended the High Court Labour Division to create a just, efficient, and
speedy system of labour dispute resolution to serve the whole expanse of
Mainland Tanzania. By 2018, it had become apparent that the exclusive
jurisdiction of the Labour Division of the High Court stationed in Dar es
Salaam, as it was, could not cope with the dispute resolution requirements
of the entire Mainland of Tanzania. The Chief Justice decided to invoke
his authority under Section 50(2)(a) of the LIA to designate Judges of the
High Court at the High Court Zones to sit as Judges of the Labour Division
of the High Court. Today, the Judiciary of Tanzania extended services of
the Labour Court to the High Court Zones spread out in the country. From
2018, High Court Judges throughout Tanzania sat as Labour Division
Judges to hear and determine labour disputes. Appeals from the High
Court sitting as Labour Court lie to the Court of Appeal of Tanzania, whose
decision is final and conclusive.
The extension of the jurisdiction to hear labour cases to Judges in High

Court Zones increased the number of conflicting decisions of the High
Court on the same labour issue. Conflicting decisions of the High Court
denied proper legal guidance to not only the Commission for Mediation
and Arbitration (CMA) but also employers and employees. Ideally, the
Court of Appeal sitting above the High Court would resolve the conflicting
decisions of the High Court Judges and the CMA. But there are several
occasions where different panels of the Court of Appeal gave conflicting
decisions on the same subject matter. Therefore, this Law Report, devoted
to the decisions of the Court of Appeal, could not have come at a more
appropriate time.
This Court of Appeal of Tanzania-Labour Cases Report, in its abbreviation

CAT-LCR, is the first of its kind in Tanzania. As its name suggests, the
Labour Cases Report compiles precedent-setting decisions of the Court of
Appeal, which sits at the apex of the Court System of Tanzania. It is a
unique Law Report since all decisions focus on one specialized field of law,
Labour Law. Undoubtedly, this Cases Report will be helpful not only for
Judges, Registrars, and Mediators or Arbitrators; but also, to Advocates,
legal practitioners, students of law (especially labour law), academia in
universities and other institutions of higher learning, and other
stakeholders. The compiled cases will also reach a more comprehensive
section of the labour court users, stakeholders, and society at the local and
international levels.
This Court of Appeal of Tanzania-Labour Cases Report, and future
editions, are essential and will enable convenient accessibility of Labour
decisions. The reports are a jurisprudential tool kit to cure the prevailing
problem of conflicting decisions. To a large extent, the law reports
facilitate quick research, thereby assisting expeditious disposal of
employment and labour disputes and give parties ample time to
concentrate on their economic activities with the view of improving
economic development productivity instead of resolving disputes.
The Labour Cases Report's computer version (soft copy) will be available
on our judiciary website at www.judiciary.go.tz.
Prof. Ibrahim H. Juma (PhD)

Chief Justice of Tanzania
EDITORS
Hon. Mr. Justice (Dr.) Gerald A.M. Ndika – Justice of Appeal
Hon. Mr. Justice Jacobs C.M. Mwambegele – Justice of Appeal
Dr. Cornel Kinanila Mtaki

Mr. Marwa Maridadi Phanuel
SCOPE OF THE SERIES
This Report covers select labour cases decided by the Court of Appeal of
Tanzania from 2006 to 2022
CITATION
This Report is cited thus [2022] CAT-LCR 1
The number in the square brackets indicates the year of the Report and
the final number indicates the page number. The abbreviation CAT-LCR
refers to the Court of Appeat of Tanzania-Labour Cases Report. The page
number against each case is shown in the Index of Cases.
i
IDENTIFICATION OF CASES
The system of identifying cases which are reported is shown by the
following example:
(a) 1 (b) ADELA DAMIAN MSANYA v. TANZANIA ELECTRICITY

SUPPLY CO.LTD (c) IN THE COURT OF APPEAL OF
TANZANIA (d) AT ARUSHA (e) (MUGASHA, SEHEL, and
KAIRO, JJ.A.) (f) CIVIL APPEAL NO. 305 OF 2019
whereas:
(a) Refers to the number of the case reported;

(b) Refers to the names of the parties in the case;
(c) Refers to the Court, i. e. Court of Appeal of Tanzania;
(d) Refers to the Registry in which the case was filed;
(e) Refers to the Justices of Appeal who decided the case; and
(f) This indicates the number assigned to the case in the relevant
Registry.
ii
LIST OF JUSTICES OF THE COURT OF APPEAL OF TANZANIA 2022
1. Hon. Mr. Justice (Prof.) Ibrahim H. Juma – Chief Justice

2. Hon. Mr. Justice Augustine G. Mwarija – Justice of Appeal
3. Hon. Lady Justice Stella E.A. Mugasha – Justice of Appeal
4. Hon. Mr. Justice Shabani A. Lila – Justice of Appeal
5. Hon. Lady Justice Rehema K. Mkuye – Justice of Appeal
6. Hon. Mr. Justice Sivangilwa S. Mwangesi – Justice of Appeal
7. Hon. Mr. Justice (Dr.) Gerald A.M. Ndika – Justice of Appeal
8. Hon. Mr. Justice Jacobs C.M. Mwambegele – Justice of Appeal
9. Hon. Mr. Justice Ferdinand L.K. Wambali – Justice of Appeal
10. Hon. Lady Justice Mwanaisha A. Kwariko – Justice of Appeal
11. Hon. Lady Justice Winfrida B. Korosso – Justice of Appeal
12. Hon. Lady Justice Barke M.A. Sehel – Justice of Appeal
13. Hon. Mr. Justice Lugano J.S. Mwandambo – Justice of Appeal
14. Hon. Lady Justice (Dr.) Mary C. Levira – Justice of Appeal
15. Hon. Mr. Justice Ignas P. Kitusi – Justice of Appeal
16. Hon. Lady Justice Rehema J. Kerefu – Justice of Appeal
17. Hon. Mr. Justice Zephrine N. Galeba – Justice of Appeal
18. Hon. Lady Justice Patricia S. Fikirini – Justice of Appeal
19. Hon. Mr. Justice Panterine M. Kente – Justice of Appeal
20. Hon. Lady Justice Lilian L. Mashaka – Justice of Appeal
21. Hon. Mr. Justice (Dr.) Paul F. Kihwelo – Justice of Appeal
22. Hon. Lady Justice Lucia G. Kairo – Justice of Appeal
23. Hon. Mr. Justice Issa J. Maige – Justice of Appeal
24. Hon. Mr. Justice Abraham M. Mwampashi – Justice of Appeal
25. Hon. Mr. Justice Omar O. Makungu – Justice of Appeal
26. Hon. Mr. Justice Sam M. Rumanyika – Justice of Appea
iii
INDEX OF CASES
A
Adela Damian Msanya v. Tanzania Electricity Supply Co.Ltd ........................... 1
Asanterabi Mkonyi v. Tanesco .......................................................................... 13
B
Bahari Oilfield Services FPZ Ltd v. Peter Wilson ............................................ 21
Balton Tanzania Limited v. Victoria Galinoma And Asubisye Malolo
Mwakatobe ........................................................................................................ 32
Barclays Bank Tanzania v. Phylisiah Hussein Mcheni ..................................... 37
Bayport Financial Services (T) Limited V. Cresence Mwandele ...................... 46
Benedict Mumello V. Bank of Tanzania ............................................................ 53
Bernard Gindo & 27 Others v. TOL Gases Limited .......................................... 58
Bulyanhulu Gold Mines Limited v. Paschary Andrew Stanny........................... 66
C
Celestine Samora Manase & Twelve Others v. Tanzania Social Action Fund &
Attorney General ............................................................................................... 85
Chama Cha Wafanyakazi Mahoteli Na Migahawa Zanzibar (Horau) v. Kaimu
Mrajis Wa Vyama Vya Wafanyakazi Na Waajiri Zanzibar ............................... 91
Chama Cha Walimu Tanzania v. The Attorney General ................................... 98
CMA-CGM Tanzania Limited v. Justine Baruti .............................................. 112
Costantine Victor John v. Muhimbili National Hospital ................................. 123
D
David Nzaligo V. National Microfinance Bank Plc ........................................ 132
Dew Drop Co. Ltd v. Ibrahim Simwanza ........................................................ 143
Dr. Abraham Israel Shuma Muro v. National Institute For Medical Research
&Attorney General.......................................................................................... 149
E
Edger Kahwili v. Amer Mbarak & Azania Bancorp Ltd ................................. 156
Elia Kasalile & 17 Others v. Institute Of Social Work.................................... 163
Elia Kasalile & 20 Others v. The Institute Of Social Work............................. 177
iv
Ezekiah T. Oluoch v. The Permanent Secretary, President’s Office, Public
Service Management & 4 Others .................................................................... 193
F
Felician Rutwaza v. World Vision Tanzania ................................................... 207
Filon Felician Kwesiga v. Board Of Trustees Of Nssf .................................... 219
Finca Tanzania Ltd v. Wildman Masika & 11 Others..................................... 227
Fredy Ngodoki v. Swissport Tanzania Plc ...................................................... 231
G
Gaspar Peter v. Mtwara Urban Water Supply Authority (MTUWASA) .......... 235
Generator Logic v. Eli Mukuta ....................................................................... 245
Grumeti Reserves Limited v. Morice Akiri ...................................................... 249
H
Haider Mwinyimvua & 99 Others v. Deposit Insurance Board (Liquidator Of
FBME Bank Ltd.) & Another .......................................................................... 254
Hamad Koshuma v. Tanzania Ports Authority................................................ 264
Hassan Twaib Ngonyani v. Tazama Pipe Line Limited .................................. 271
Hector Sequiraa v. Serengeti Breweries Limited ............................................ 284
J
Jimson Security Service v. Joseph Mdegela .................................................... 290
John Bosco Kazinduki v. The Minister For Labour & Another ...................... 295
Joseph Daudi Ndunguru v. Twiga Bancorp Limited ....................................... 299
Joseph Khenani v. Nkasi Distric Council........................................................ 302
Joseph Magata v. Vodacom (T) Limited ......................................................... 309
Juma Akida Seuchago v. SBC (Tanzania) Limited .......................................... 313
Juma Busiya v. Zonal Manager, South Tanzania Postal................................. 319
Corporation .................................................................................................... 319
Justus Tihairwa v. Chief Executive Officer, TTCLl......................................... 326
K
Kaemba Katumbu v. Shule Ya Sekondari Mwilamvya .................................... 332
Khadija Lumbi v. Tanzania Revenue Authority............................................. 339
v
Kobil Tanzania Limited v. Fabrice Ezaovi...................................................... 344
M
Magnet Construction Limited v. Bruce Wallace Jones ................................... 355
Magnus K. Laurean v. Tanzania Breweries Limited ....................................... 362
Mantra Tanzania Limited v. Joaquim Bonaventure ........................................ 380
Mantra Tanzania Limited v. Joaquim P. Bonaventure.................................... 389
Masolwa D. Masalu v. The Attorney General & Another ............................ 399
Mic Tanzania Limited v. Imelda Gerald ......................................................... 407
Mic Tanzania Ltd v. Albert P. Milanzi ............................................................ 417
Muhimbili National Hospital v. Linus Leonce ................................................ 422
Mwamvita Mziba & Others v. The Registered Trustees Of Bugando Medical
Centre ............................................................................................................. 427
N
National Microfinance Bank Ltd (NMB) v. Neema Akeyo .............................. 433
National Microfinance Bank v. Leila Mringo & Others ................................. 441
National Microfinance Bank v. Victor Modest Banda .................................... 456
North Mara Gold Mine Limited v. Isaac Sultan .............................................. 465
North Mara Gold Mine Limited v. Joseph Weroma Dominic ......................... 477
North Mara Gold Mine Limited v. Khalid Abdallah Salum ............................ 486
Novatus Williams Nkwama v. TUGHE ........................................................... 493
Nyanza Road Works Limited v. Giovanni Guidon .......................................... 502
P
Pangea Minerals Limited v. Gwandu Majali .................................................. 509
Paschal Bandiho v. Arusha Urban Water Supply And Sewerage Authority
(AUWASA) ...................................................................................................... 520
Patrick John Butabile v. Bakhresa Food Products Ltd ................................... 532
Patrick Magologozi Mongella v. The Board Of Trustees Of The Public Service
Social Security Fund ....................................................................................... 537
Paul Yustus Nchia v. National Executive Secretary Chama Cha Mapinduzi And
Another ........................................................................................................... 551
vi
Peter Mabimbi v. The Minister For Labour And Youths Development And
Others ............................................................................................................. 557
Peter Maghali v. Super Meals Limited............................................................ 568
Peter Samanya Msacky v. Chief Executive Officer Agricultural Seed Agency
And Two Others .............................................................................................. 576
Philimon Simwandete Mbanga v. The Permanent Secretary, Ministry Of
Defence And Another ...................................................................................... 580
R
Remigious Muganga v. Barrick Bulyanhulu Gold Mine ................................. 586
S
Security Group (T) Ltd v. Samson Yakobo And 10 Others .............................. 592
Serenity On The Lake Ltd v. Dorcus Martin Nyanda ...................................... 600
Serenity On The Lake Ltd v. Dorcus Martin Nyanda ...................................... 606
Severo Mutegeki & Another v. Mamlaka Ya Maji Safi Na Usafi Wa Mazingira
Mjini Dodoma (DUWASA).............................................................................. 611
St. Joseph Kolping Secondary School v. Alvera Kashushura

………………………………..449
Swilla Secondary School v. Japhet Petro ........................................................ 458
T
Tanzania Posts Corporation v. Jeremiah Mwandi .......................................... 465
Tanzania Breweries Limited v. Mohamed Kazingumbe .................................. 474
Terevael M. Ngalami v. Kampuni Ya Simu (T) TTCL .................................... 483
The Copycat Tanzania Limited v. Mariam Chamba ................................... 67990
Tuico. (On Behalf Of Its Members) v. The Chairman Industrial Court Of
Tanzania & Another ........................................................................................ 684
Tumaini Massaro v. Tanzania Ports Authority ............................................... 500
Tanzania Portland Cement Co. Ltd v. Ekwabi Majigo ................................... 505
U
Unilever Tea Tanzania Limited v. Davis Paulo Chaula.................................. 510
V
vii
Veneranda Maro & Another v. Arusha International Conference Centre ...... 515
W
William Mwakitalu And 29 Others v. PPF Pension Funds ............................. 524
Z
Zanzibar University v. Abdi A. Mwendambo & Two Others ........................... 529
viii
SUBJECT INDEX
Affidavit – failure to show whether attesting officer knew the deponent – whether
affidavit is defective.
Peter Mabimbi v. The Minister for Labour and Youths Development & 2
Others
Appeal – grounds of appeal to the Court raise matters of fact – appellant wants
the grounds to remain in the memorandum of appeal so that, in the course of
hearing the appeal, the Court invokes its revisional jurisdiction to consider them
- whether appellant’s submission is tenable
Remigious Muganga v. Barrick Bulyanhulu Gold Mine
Appeal – leave to appeal to the Court of Appeal of Tanzania – ruling which gave
rise to the impugned decision of the Labour Court arose from execution
proceeding preferred under 0. XXI r.9 and 10 of the CPC - whether the appeal
though originating from the Labour Court requires leave.
Remigious Muganga v. Barrick Bulyanhulu Gold Mine
Appeal – limitation of time – failure to file an appeal within 60 days – whether
appeal was competent.
& 2 Others
Appeal – record of appeal – failure to serve the other party copies of letter to the
registrar applying for copies of proceedings – whether fatal.
& 2 Others
Appeal – records of appeal – incomplete record of appeal – whether appellant
may be allowed to file a supplementary record of appeal under the spirit of
overriding objective principle.
Joseph Daudi Ndunguru v. Twiga Bancorp Limited
Appeal – supplementary record of appeal – supplementary record of appeal
which was supposed to contain an omitted document which is the evidence of
service of the letter to the respondent not filed contrary to the court’s order –
whether the omission vitiated the appeal.
Novatus Williams Nkwama v. Tughe
ix
Appeals – Appeals from decisions of the High Court, Labour Division to the
Court of Appeal of Tanzania – Appeals should be on a point of law only - What
amounts to a point of law as opposed to a matter of fact - Section 57 of the Labour
Institutions Act, Cap 300
CMA-CGM Tanzania Limited v. Justine Baruti
Appeals – Court of Appeal – whether appeals to the court of appeal should lie on
point of law only - section 57 of the Labour Institutions Act, Cap 300.
National Microfinance Bank Ltd (NMB) v. Neema Akeyo
Application for extension of time – expeditious resolution of disputes –whether
expeditious resolution of the disputes should prevail over compliance with the
timelines for referring labour disputes before the CMA
Nyanza Road Works Limited v. Giovanni Guidon
Application for extension of time – Applicant went missing for four years after
termination but alleges technical delays in filing the application for condonation
– whether the delay was inordinate and whether the appellant failed to assign
sufficient grounds for extension of time - Rule 10(2) of the Labour Institutions
(Mediation and Arbitration) Rules, 2007
Patrick John Butabile v. Bakhresa Food Products Ltd
Application for extension of time – Application for extension of time to file appeal
out of the statutory time – Applicants allege that the proceedings, the subject of
appeal were tainted with illegalities and that the said proceedings also contained
topographical errors which could have made the appeal defective – Whether
sufficient cause was shown.
Mwamvita Mziba & Others v. The Registered Trustees of Bugando Medical
Centre
Application for extension of time – Application for extension of time to file appeal
out of the statutory time – Applicants allege that the proceedings, the subject of
appeal were tainted with illegalities and that the said proceedings also contained
topographical errors which could have made the appeal defective – Whether
sufficient cause was shown.
Mwamvita Mziba & Others v. The Registered Trustees of Bugando Medical
Centre
Application for extension of time – discretionary powers of the Court – Scope and
circumstances in which powers can be invoked by the Court.
x
Philimon Simwandete Mbanga v. The Permanent Secretary, Ministry of
Defence and Another
Application for extension of time - Ground for delay being failure to be supplied
with the necessary documents in time and being supplied with confusing two
copies of decrees bearing different dates and different amounts – High Court
found the same to be sufficient grounds and granted the extension prayed for –
Whether the two grounds amounted to "sufficient cause.''
Benedict Mumello v. Bank of Tanzania
Application for extension of time – Initially the applicant fell sick and attended
treatment at two hospitals – for eight years the applicant was in the corridors of
the High Court at Mwanza in an unsuccessful bid for extension of time within
which to lodge a Notice of Appeal and apply for leave to appeal to this Court -
whether there is a good cause for condonation of the delay.
Peter Mabimbi v. The Minister for Labour and Youths Development & 2
Others
Application for extension of time – poof of good cause – applicant failed to
explain away the delay of about 66 days – whether applicant failed to show good
cause for the delay
Defence and Another
Application for Extension of time – sickness – whether the High Court exercised
its discretion properly in quashing the decision of the CMA and condoning the
delay on the ground of the respondent's sickness.
Nyanza Road Works Limited v. Giovanni Guidon
Application for extension of time – technical delay – it’s meaning thereto.
Defence and Another
Application for extension of time to re-hear and determine on merit and the
satisfaction of the parties in the failed previous application for review - whether
the Court can review its own decision
xi
Tuico. (On Behalf of its Members) v. The Chairman Industrial Court of
Tanzania & Another
Application for restoration of arbitral proceedings – Whether the Labour Court
did not exercise its discretion judiciously for not basing its decision on existence
or non-existence of sufficient cause.
MIC Tanzania Limited v. Imelda Gerald
Application for review - Judgment allegedly based on a manifest error on the face
of the record resulting in the miscarriage of justice – Whether the disposition of
the impugned appeal by the Court was riddled with a manifest error.
Edger Kahwili v. Amer Mbarak & Azania Bancorp Ltd
Application for review - Judgment allegedly based on a manifest error on the face
of the record resulting in the miscarriage of justice – Whether the Court ought to
have followed the course it took in its previous four decisions
Elia Kasalile & 17 Others v. Institute of Social Work
Application for Revision – Appellant moves the Court to exercise its powers of
revision - Whether appellant demonstrated any circumstances special or
otherwise, to move the Court to exercise its powers of revision as an alternative
to appellate jurisdiction.
Chama Cha Walimu Tanzania v. The Attorney General
Burden of proof – Employee charged with allegations of gross dishonest by the
employer - Whether criminal proceedings must be instituted and charges proved
before termination of the employee's employment
Dew Drop Co. Ltd v. Ibrahim Simwanza
Burden of proof in labour cases – Appellant alleges both substantive and
procedural unfair termination - High Court's decision only based upon
extraneous matters namely the opening statements, made and lodged by the
respondent – Whether respondent discharged the burden of proof burden –
Section 39 of Employment and Labor Relations Act [Cap 366 R.E. 2019]
Fredy Ngodoki v. Swissport Tanzania Plc
Certificate of delay - Certificate of Delay excludes time from a date even before
the Registrar received the letter applying for documents for appeal purposes -
Whether the defect does not go to the root of the matter.
xii
Dr. Abraham Israel Shuma Muro v. National Institute for Medical Research
&Attorney General
Certificate of delay - Appellant applied to be supplied with documents in respect
of two different matters, to wit, Labour Dispute No. 1 of 2014 and Misc. Labour
Application No. 6 of 2018 to enable him to prepare the record of appeal –
Certificate of delay only referred to Misc. Labour Application No. 6 of 2018, a
matter not the subject of appeal before the Court – Whether defect is curable
under the overriding principle – Whether the appeal was time barred.
Dr. Abraham Israel Shuma Muro v. National Institute for Medical Research
&Attorney General
Certificate of delay - Certificate of delay wrongly excluded the number of days -
Was not served on the respondent as required by the Rules - Certificate issued
without providing the appellant with a copy of the proceedings – Whether the
certificate was ineffective and whether it is curable under the overriding objective
principle.
Finca Tanzania Ltd v. Wildman Masika & 11 Others
Certiorari – application for an order of certiorari – whether once it was accepted
that the purported decision was no decision at all in law, the High Court should
have issued the order of certiorari to quash and set aside that purported decision
which had no effect of reversing the decision of the Conciliation Board.
John Bosco Kazinduki v. The Minister for Labour & Another
Compensation – respondent awarded compensation beyond the minimum
statutory rate - whether the judge applied the right principle in awarding the
compensation of 90 months' salary and whether it was correct for him to do so
by considering matters that were not earlier raised resulting into condemning the
appellant unheard.
North Mara Gold Mine Limited v. Isaac Sultan
Compensation – subsistence allowance – the manner in which it should be
calculated.
Juma Akida Seuchago v. SBC (Tanzania) Limited
Confidentiality - High Court relies on statements made during mediation as a
basis for its decision holding that there was proof that the appellant had engaged
himself in politics in contravention of the employment manual – Whether it was
irregular for the court to rely on mediation proceedings.
xiii
Felician Rutwaza v. World Vision Tanzania
Constructive Termination - employer allegedly raised allegations of fraud against
respondent and went on to terminate respondent’s monthly salary and changed
the management system of employment – Whether employer created intolerable
conditions amounting to constructive termination.
Kobil Tanzania Limited v. Fabrice Ezaovi
Court practice – administration of oath or affirmation to witness – consequences
for failure to administer the same.MIC Tanzania Ltd v. Albert P. Milanzi
Court practice – appeal – conditions under which an appeal can be rejected.
Juma Busiya v. Zonal Manager, South Tanzania Postal Corporation
Court practice – Applicant makes application to the Court to strike out Notice of
appeal from the decision of the High Court of Tanzania (Labour Division) –
Applicant also filed a Civil Reference in the Court challenging the decision of the
Single Justice granting the respondent extension of time to file notice of appeal –
Whether the making of the two applications amounts to abuse of court process.
Hector Sequiraa v. Serengeti Breweries Limited
Court practice – dismissal of application for being time barred while the same
had been filed within the time ordered by the same court – whether the advocate
has a duty to assist the court.
Joseph Magata v. Vodacom (T) Limited
Court practice – exercise of discretionary power – circumstances upon which an
appellate court can interfere with the exercise of discretion of an inferior court
or tribunal
Pangea Minerals Limited v. Gwandu Majali
Court practice – order of the court – failure to comply with the order of the court
to lodge a document or documents – consequences thereto.
Novatus Williams Nkwama v. TUGHE
Court practice – record of proceedings – whether the arbitrator is required to
append a signature at the end of record of each witness.
Bahari Oilfield Services FPZ Ltd v. Peter Wilson
Defective application – Application for revision - Whether the application was
fatally defective for want of proper enabling provision of the law to move the
court.
xiv
Disciplinary action – employee charged in a court of law but terminated for
misconduct committed during suspension – whether termination was
substantively fair.
Peter Maghali v. Super Meals Limited
Disciplinary hearing – failure to issue a report as vital evidence to the employee
during disciplinary hearing – whether amounts to violation of right to be heard.
Severo Mutegeki & Another v. Mamlaka ya Maji Safi na Usafi wa Mazingira
Mjini Dodoma (DUWASA)
Disciplinary hearing – formal charge – failure to serve the same – whether
amounts to violation of the law.
Jimson Security Service v. Joseph Mdegela
Discrimination – termination on ground of discrimination – factors of
discrimination – section 7(4) ELRA, Cap 360
Evidence - Appellant did not cross-examine the respondent on the question of
being discriminated – Whether appellant admitted what was stated by respondent
Evidence – Investigative report – Report not made on any official headed paper
and lacked the signature of its maker – Report not made by an independent
investigator but an official from Security company who had an apparent interest
to serve – Whether the report was admissible, authentic and reliable - Section
18 of the Electronic Transactions Act, 2015
Magnus K. Laurean v. Tanzania Breweries Limited
Evidence - omission by the arbitrator to append his signature to the evidence of
the witnesses – whether fatal to the proceedings
MIC Tanzania Ltd v. Albert P. Milanzi
Evidence – propriety of the proceedings of the CMA in which the testimonies of
some of the witnesses were received without oath or affirmation - rule 25 (1) of
the Labour Institutions (Mediation and Arbitration) Rules, Government Notice
No. 67 of 2007.
Tanzania Portland Cement Co. Ltd v. Ekwabi Majigo
xv
Evidence – taking oath by witnesses – Arbitrator recorded the evidence of
witnesses without having required them to take oath - failure by arbitrator to take
oath from the witnesses – consequences thereto.
Unilever Tea Tanzania Limited v. Davis Paulo Chaula
Evidence – Whether the evidence tendered in the CMA by the two witnesses was
insufficient to prove the claims for all the respondents since the 1st respondent
did not also testify.
Security Group (T) Ltd v. Samson Yakobo & 10 Others
Evidence – witness – administration of oath to witness – whether mandatory.
North Mara Gold Mine Limited v. Khalid Abdallah Salum
Evidence – witness not cross-examined on his evidence – consequences thereto.
Paul Yustus Nchia v. National Executive Secretary Chama Cha Mapinduzi
and Another
Evidence - Witnesses for both sides did not take oath before their testimonies
were recorded by the Commission for Mediation and Arbitration – Whether
omission by the witnesses to take oath before giving evidence is fatal andt vitiates
the proceedings.
The Copycat Tanzania Limited v. Mariam Chamba
Ex-parte award – Application for revision to set aside ex-parte award - High
Court strikes out the application for revision holding that the Civil Procedure
Code is inapplicable on the issue - Whether the order of the court of striking out
the application for revision is appealable.
Generator Logic v. Eli Mukuta
Extension of time – ground of illegality – whether illegality must be fully
established for the court to exercise its discretion to extend time
Magnet Construction Limited v. Bruce Wallace Jones
Injunction - Respondent impleaded the Court to grant an order for permanent
injunction restraining the Respondent and its members from calling for and/or
participating in an illegal planned strike – Whether the injunction issued was an
interlocutory one or had the effect of finally determining the application before
the Labour Court.
xvi
Interlocutory order – Order by the judge refusing to grant appellant an order of
temporary injunction against an intended eviction - whether the order was
appealable - section 5(2)(a) of the Appellate Jurisdiction Act, Cap 141
Khadija Lumbi v. Tanzania Revenue Authority
Interlocutory order – Ruling of the High Court setting aside an ex parte judgment
of the same Court - Whether an appeal lies against the decision of the High Court
setting aside its ex parte judgment - Section 5 (2) (d) of the Appellate Jurisdiction
Act, Cap. 141 R.E. 2019
Celestine Samora Manase & 12 Others v. Tanzania Social Action Fund &
Attorney General
Interlocutory order – tests for determining whether the order is interlocutory or
otherwise.
Tanzania Posts Corporation v. Jeremiah Mwandi
Interpretation – applicability of section 32A of Public Service Act – whether it
can be applied retrospectively in procedural matters.
Joseph Khenani v. Nkasi Distric Council
Interpretation - business in which the respondents were engaged requires
unqualified good faith and honesty, integrity, trust and confidence - Respondents
in a bank terminated for lack of good faith 'as well as gross negligence and
misconduct - Court orders respondents’ reinstatement – Whether Rule 12 of the
Code of Good Practice GN No. 42 of 2007 was properly interpreted by the court.
National Microfinance Bank v. Victor Modest Banda
Interpretation – Canon rules of interpretation - presumption against absurdity –
whether applicable in interpreting section 28 (2) of Industrial Court of Tanzania
Act, 1967.
Tanzania Breweries Limited v. Mohamed Kazingumbe
Interpretation – grant of reliefs of reinstatement and compensation - Labour
Court granted the reliefs sought by the respondents conjunctively instead of
granting them disjunctively – Whether the High Court properly interpreted the
provisions of section 40 (1) (c) of the ELRA.
National Microfinance Bank v. Victor Modest Banda
Interpretation - Intention of the legislature in enacting section 41 of the Banking
and Financial Institutions Act, 2006.
xvii
Haider Mwinyimvua & 99 Others v. Deposit Insurance Board (Liquidator
of FBME Bank Ltd.) and FBME Bank Limited )
Interpretation – matters of law and facts – appellate and revisional jurisdiction
of the Court of Appeal
Patrick Magologozi Mongella v. The Board of Trustees of the Public Service
Social Security Fund
Interpretation – What is meant by the phrase "a similar application on the same
matter' - Rule 96 (8) of the Tanzania Court of Appeal Rules, 2009.
Bernard Gindo & 27 Others v. TOL Gases Limited
Interpretation – whether the use of the word “dispute’’ in Rule 50 of the Rules
that “an appeal does not lie against a decision of the Labour Court unless it has
the effect of finally determining the dispute’’ refers to a dispute in the CMA or
the Labour Court.
Mic Tanzania Limited v. Imelda Gerald
Interpretation – word “suit’’, “interlocutory order and interlocutory
proceedings’’ – their meaning and determination thereof.
Interpretation –Termination based on operational requirements, otherwise
referred to as “retrenchment’’ – Retrenchment not defined in the Employment
and Labour Relations Act, Cap 366 - What the legislature had in mind by the term
"retrenchment."
of FBME Bank Ltd.) and FBME Bank Limited)
Judgment – counsel culls out some few paragraphs and sentences from the
judgment and reads them out of the context of the entire judgment – Whether
counsel’s submissions tenable.
Tumaini Massaro v. Tanzania Ports Authority
Judicial review - Appellant applied for judicial review – Whether there were
alternative remedies to judicial review
Ezekiah T. Oluoch v. The Permanent Secretary, President’s Office Public
Service Management & 4 Others
Judicial review - Appellant applied for the orders of certiorari, mandamus, and
prohibition – Whether appellant proved the grounds for judicial review to justify
xviii
issuing the writs prayed for - Regulation 37 of the Local Government (Teachers
Service Scheme) of 2016 G.N. No. 311 of 2016, read together with section H. 19
(1) (2) of the Standing Orders for Public Service of 2009 and Regulation 29 of
the Public Service Regulations of 2003 G.N. No 168 of 2003
Jurisdiction – applicability of section 32A of Public Service Act – whether CMA
has jurisdiction to entertain a complaint on terminal benefits before exhausting
the procedure provided for by the Public Service Act.
Joseph Khenani v. Nkasi Distric Council
Jurisdiction – Application for revision – Circumstances in which court may
review its own decision – Rule 66(1) of the Court of Appeal of Tanzania Rules,
2009
Jurisdiction – executing court – Conciliation Board decreed that appellant be
paid all his terminal benefits according to the laws and voluntary agreement
relating to his employment –Board did not specify items of terminal benefits -
whether an executing court has no jurisdiction to execute what is beyond the
decree.
Hassan Twaib Ngonyani v. Tazama Pipeline Limited
Jurisdiction – High Court ordered that dispute before the court be sent back to
the CMA for determination on merit – whether the order was an interlocutory
order and whether the Court had jurisdiction to entertain the appeal founded on
that order- section 5(2)(d) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019]
(the AJA).
Jurisdiction – Internal appellate mechanism - Respondent referred the dispute to
the CMA prematurely without exhausting the internal mechanism – Whether the
Arbitrator wrongly entertained the respondent's referral to the Commission for
Mediation and Arbitration.
Bayport Financial Services (T) Limited v. Cresence Mwandele
Jurisdiction - Stay of execution – jurisdiction of the Deputy Registrar – whether
the Deputy Registrar has jurisdiction to hear and order for stay of execution of a
decree emanating from revision proceedings of the Labour Court.
xix
Serenity on the Lake Ltd v. Dorcus Martin Nyanda
Jurisdiction – time limitation - second application to set aside the ex-parte award
was time barred – arbitrator proceeded to entertain the application resulting into
setting aside the previous ex parte award – whether arbitrator was invested with
jurisdiction to hear and determine the dispute
Swilla Secondary School v. Japhet Petro
Jurisdiction - Whether an agreement between the parties has the effect of ousting
the jurisdiction of the CMA and that of the High Court in a labour dispute.
Bahari Oilfield Services Fpz Ltd v. Peter Wilson
Leave to file supplementary record of appeal - Court granted leave to appellants
to file a supplementary record of appeal in order to include a properly drawn
certificate of delay – On the scheduled day for hearing Counsel for appellants
makes another application for filing a supplementary record of appeal - Whether
second application is time barred – Whether the oxygen principle applies - Rule
96 (8) of the Rules.
Bernard Gindo & 27 Others v. TOL Gases Limited
Leave without pay – Appellant, a public servant applied for leave without pay -
Whether applicant’s, employer was bound to grant leave without pay - section
H.19 of the Standing Orders.
Limitation period – Grant of leave by the High Court to refile an application for
revision which was struck out two times - Whether application was time barred
and whether the court properly exercised its discretion.
Limitation period – Lapse of time between when the last application was struck
out and the time when the current application was made – whether the appellant
accounted for the period of delay as required by law
Magnet Construction Limited v. Bruce Wallace Jones
Limitation period – overriding objective principle – whether it can be invoked in
cases of time limitation.
Juma Busiya v. Zonal Manager, South Tanzania Postal Corporation
xx
Limitation period – Rules of statutory interpretation - Fate of a time barred
labour matter - Whether it is dismissal or striking it out – Sections 3, 43 and 46
of the Law of Limitation Act [Cap 89 R.E 2002] and Rules 3 and 10 of the Labour
Institutions (Mediation and Arbitration) Rules, 2007, G.N. No. 64 of 2007,
Barclays Bank Tanzania v. Phylisiah Hussein Mcheni
Limitation period - the impugned decision sought to be challenged was delivered
on 10th December, 2019, the notice of appeal was lodged on 7th January, 2020
and the memorandum of appeal was lodged on 10th March, 2020 - Whether the
appeal was time barred - Rule 90 (1) of the Tanzania Court of Appeal Rules, 2009
Filon Felician Kwesiga v. Board of Trustees of NSSF
Liquidation – Appointment of a statutory liquidator – Role of the Deposit
Insurance Board upon its appointment as liquidator.
of FBME Bank Ltd.) and FBME Bank Limited )
Locus standi - Appellant is a recognized trade union in terms of section 25(1) of
the Labour Relations Act, 2005 – Appellant instituted a labour dispute against
the respondent - Whether the appellant and not the Board of Trustees of the
appellant had locus standi to sue the respondent - Section 48 of the appellant's
Constitution.
Chama Cha Wafanyakazi Mahoteli na Mikahawa Zanzibar (HORAU) v.
Kaimu Mrajis wa Vyama Vya Wafanyakazi Na Waajiri Zanzibar
Natural justice – Rule requires absence of bias – Circumstances in which the rule
may be dispensed with
Notice of Appeal – Notice of appeal to institute an appeal filed in time and served
on the applicant – Applicant alleges that appeal was not instituted within the
period of 60 days prescribed under Rule 90 (1) of the Rules – Whether application
to strike out notice of appeal is devoid of merit
Kaemba Katumbu v. Shule ya Sekondari Mwilamvya
Notice of intention to appeal - Appellant did not serve the notice of appeal either
on the respondent in person or his advocate - Whether the appeal is incompetent
- Rule 84 (1) of the Tanzania Court of Rules, 2009.
Grumeti Reserves Limited v. Morice Akiri
xxi
Overriding principle – whether it can be invoked to cure breach of mandatory
rules of procedure.
& 2 Others
Preliminary objection - Appellant raised four grounds of appeal to the Court --
Appeal greeted with two sets of preliminary objections - Whether the assailed
grounds of appeal raise points of law.
Preliminary objection – Date of judgment – What constitutes date of judgment –
Rule 39(9) of the Court of Appeal of Tanzania Rules, 2009
Preliminary objection – jurisdiction of the court – respondents raise objection
relating to jurisdictional matters that the Court lacks jurisdiction to entertain the
application for extension of time view of the provisions of the law which renders
it time barred – Whether the preliminary objection raises a point of law
TUICO (On Behalf of Its Members) v. The Chairman Industrial Court of
Tanzania & Another
Preliminary objection - Whether a party was served or not, is a factual issue
requiring evidence, which disqualifies it from being a point of law.
Grumeti Reserves Limited v. Morice Akiri
Preliminary objection – Whether the all the points of preliminary objection raised
by the respondent are based on pure points of law.
Gaspar Peter v. Mtwara Urban Water Supply Authority (MTUWASA)
Principles of Unfair Termination – Appellant employed on fixed term contract -
The contract was incessantly rolled over; that it was renewed by the respondent
after the expiry of each term - Whether the principles of unfair termination
applied to the appellant's employment with the respondent - Section 36 (a) (iii) of
the Employment and Labour Relations Act, Cap 360 and Rule 3 (3) and (4) of
Employment and Labour Relations (Code of Good Practice) Rules, 2007,
Government Notice No. 42 of 2007
Asanterabi Mkonyi v. Tanesco
Probation period - Employee worked beyond the probationary period in his
employment without being confirmed - Whether employee entitled to the reliefs
xxii
falling under Patt III, Sub- Part E of Employment and Labour Relations Act, Act
No. 6 of 2004.
David Nzaligo v. National Microfinance Bank Plc
Procedural irregularity - Appellant failed to file written submission – Whether
the failure is fatal and whether it rendered the appeal incompetent - Rule 106(1)
of the Court of Appeal Rules, 2009.
Procedural Irregularity – Arbitrator met the Respondent in the absence of the
appellant and allowed the respondent to file written submissions out of time -
Whether the conduct of the arbitrator in meeting the Respondent in the absence
of the Appellant was in violation of Rule 5 (h) and (i) of the Labour Institutions
(Ethics and Code of Conduct for Mediators and Arbitrators) Rules, 2007G.N. No.
66 of 2007 thus amounted to misconduct.
Bayport Financial Services (T) Limited v. Cresence Mwandele
Procedural requirement – Appellant did not serve the letter requesting for copies
of the certified documents on the Respondent or the Registrar - Letter not
included in the record of appeal – Whether appeal was competent before the
Court and whether appellant can benefit from the exception under the proviso to
Rule 90 (1) of the Tanzania Court of Appeal Rules, 2009
Filon Felician Kwesiga v. Board of Trustees of NSSF
Procedural requirement – record of proceedings – failure by arbitrator to put
signature at the end of record of evidence of witness – whether fatal.
Unilever Tea Tanzania Limited v. Davis Paulo Chaula
Procedural requirement - Termination letters only referred to the Public Service·
Regulations, 2003 and the Employment and Labour Relations Act, 2004 -
Respondent did not produce anything in the CMA such as charges or
notifications/ letters alleged to have been served to the appellants - Whether the
appellants were served with charges preferred against them and notifications of
hearing before the Disciplinary Committee; and afforded an opportunity to be
heard.
Elia Kasalile & 20 Others v. The Institute of Social Work
Procedural requirements – authentication of arbitral proceedings - Arbitrator
designed his own style of authentication of proceedings by having all parties and
their advocates sign on the coram, and later by calling upon the advocates, to
xxiii
sign again at the end of the testimony of each witness – whether proceedings were
a nullity - Rule 19 (1) of the Rules
designed his own style of authentication of proceedings by having all parties and
their advocates sign on the coram, and later by calling upon the advocates, to
sign again at the end of the testimony of each witness – whether proceedings were
a nullity - Rule 19 (1) of the Rules
Procedural requirements – exercise of discretionary powers – whether the
appellate court can interfere with the exercise of discretion of an inferior court
or tribunal.
Veneranda Maro & Another v. Arusha International Conference Centre
Procedural requirements – record of proceedings – arbitrator appends
signatures of witnesses and their advocates at the beginning of the proceedings-
whether proceedings are fatal
North Mara Gold Mine Limited v. Khalid Abdallah Salum
Record of appeal - Appellant failed to include in the record of appeal pleadings
filed in the CMA, Form No. 1, copy of the proceedings in the CMA and some of
the tendered exhibits – Whether the omission rendered the appeal incompetent -
Rule 96(1) and (2) of the Court of Appeal Rules, 2009.
Record of appeal – Record of appeal is deficient due to the omission of a number
of core documents – Whether the omission had a deleterious effect to the
competence of the appeal.
Record of court proceedings – arbitrator did not append his signature after each
witness had finished testifying – whether the omission to append his signature
was fatal to the proceedings
Reliefs – awarding of compensation – rules governing thereto.
xxiv
Reliefs – High Court finds that the respondent was substantively and procedurally
unfairly terminated – High Court does not grant the respondent's prayer for
reinstatement which was one of the reliefs sought in CMA Form No.1- Whether
High Court’s decision was irregular – section 40 (1) of the ELRA
Mantra Tanzania Limited v. Joaquim Bonaventure
Reliefs – Order of compensation – arbitrator finds that the termination was
substantively and procedurally unfair and awards 36 months compensation -
High Court finds that termination was fair in both aspects but appreciated that
the arbitrator has power to award compensation above 12 months compensation
– Whether the High Court acted fairly to quash the CMA award
Tumaini Massaro v. Tanzania Ports Authority
Reliefs – Repatriation costs – circumstances in which they can be granted.
Reliefs – subsistence allowance – appellant paid part-payment of his terminal
benefits including repatriation expenses but spends it on other personal
commitments – whether employer is bound to pay subsistence allowance for the
rest of the days the employee remains at the working station.
and Another
Reliefs – subsistence allowance – the manner in which it is calculated.
Reliefs – Termination found unfair- Whether the court can grant reliefs not
prayed in the CMA's Form No. 1 but proved by the employee
Balton Tanzania Limited v. Victoria Galinoma and Asubisye Malolo
Mwakatobe
Reliefs – Whether it was proper for the CMA to grant 12 months' salaries
compensation in a case where the respondent had valid reason for terminating
the appellant and at the same time grant payment of salaries for the unexpired
term of a fixed term contract.
Remedies – grant of an award – whether the arbitrator or Labour Court has
discretion to decide on the appropriate quantum of compensation.
xxv
Repatriation - Appellant issued notice of resignation from his employment -
Notice was accepted - Whether, from the circumstances under which the
appellant's employment was terminated, the provisions of section 43(1) of the
ELRA on repatriation were applicable to him.
Repatriation - appellant recruited in Dodoma but preferred to be repatriated to
Nachingwea - whether the appellant was entitled to be repatriated to Nachingwea
and whether the respondents were obligated to pay him subsistence allowance
upon termination of his employment- section 53 of the then Employment
Ordinance, Cap. 366 (now section 59, Employment Act, Cap. 366 RE 2002).
and Another
Representative suit - CMA F1 allegedly filled in and signed by first appellant
without indicating that he was mandated by the 20 other employees to fill, sign
and file the labour dispute on their behalf; and no application for a representative
suit was filed seeking leave to represent them – Whether or not the dispute
before the CMA was preferred by one employee or it involved even the other 20
appellants.
Representative suit – need for leave - whether the complaint filed in the CMA was
bad for want of leave to the 1st respondent to institute the dispute on behalf of the
other ten employees.
Security Group (T) Ltd v. Samson Yakobo & 10 Others
Review – Court agrees with both the CMA and the High Court that termination
of employment of applicants was both substantively and procedurally unfair –
Court refrains from granting the reliefs prayed for – Whether failure to grant the
reliefs constitutes an apparent error on the face of the record
Review – manifest error on the face of the record – ingredients of an error on the
face of the record - Rule 66 (1) (a) of the Rules.
Justus Tihairwa v. Chief Executive Officer, TTCL
Revision – jurisdiction of the court – parameters in which the court’s revisional
jurisdiction can be invoked for the purposes of satisfying itself as to correctness,
legality or propriety of any finding, order or any decision made and as to the
xxvi
regularity of any proceedings of the High Court - section 4 (3) of the Appellate
Jurisdiction Act, Cap 141
Revision – jurisdiction of the Court – whether in a revision the Court has power
to re-appreciate and reassess the evidence on record and whether the ten grounds
of revision upon which the application is based raise matters of fact or points of
law.
Revision – jurisdiction of the Labour Court - Labour Court finds the second
application for setting aside the ex-parte award was time barred - validity of the
ex-parte award was not at issue as it was not raised as a ground of revision -.
Labour Court proceeded to vary the ex- parte award – Whether the variation of
the terms that obtained in it was improper.
Swilla Secondary School v. Japhet Petro
Revision – jurisdiction of the Labour Court – appeal arises from a decision on
revision against the decision of the arbitral tribunal refusing to set aside a
dismissal order - whether the Labour Court has jurisdiction to reverse
proceedings of the arbitral tribunal.
MIC Tanzania Limited v. Imelda Gerald
Right to be heard – Applicants denied the right to be heard before the disciplinary
committee - Whether the denial nullified the proceedings before the CMA and
High Court and whether there was an error on the face of the record
Right to be heard –respondent’s Internal Audit Manual provides that no findings,
conclusions and recommendations should ever be incorporated in an audit report
that were not previously discussed with auditees – appellants requested for the
audit report but was not supplied to them – whether appellants were condemned
unheard.
Rules of natural justice – Chairman of the ICT sitting in its original jurisdiction
heard and determined the matter – the same Chairman heard and determined the
xxvii
matter while the ICT was sitting in its revisional jurisdiction – whether this
manifested breach of the nemo judex in causa sua rule – section 28(2) of the
Industrial Court Act 1967.
Statutory benefits – Repatriation costs – Whether payment of repatriation costs
is conditional upon the employee indicating the date of departure - Section 43 of
the Employment and Labour Relations Act, Cap 360.
Bahari Oilfield Services FPZ Ltd v. Peter Wilson
Stay of execution – circumstances in which the court may grant an order for stay
of execution.
Zanzibar University v. Abdi A. Mwendambo & 2 Others
Stay of execution – notice of appeal – whether the High Court has jurisdiction to
issue an order of stay of execution while there is a notice of appeal pending in
the Court.
Termination of employment - Employee terminated on ground of gross
dishonesty for the money entrusted to him as a driver - No evidence suggesting
that the respondent was formally charged – Whether the termination was
substantively and procedurally unfair.
Dew Drop Co. Ltd v. Ibrahim Simwanza
Termination of employment – Appellant alleged to have engaged in politics and
committed acts of gross dishonesty contrary to the employment manual – Whether
appellant’s termination was substantively and procedurally fair.
Termination of employment – burden of proof – circumstances under which it can
be shifted.
National Microfinance Bank v. Leila Mringo & Others
Termination of employment – burden of proof – whether an employer has the
burden of proof that termination was fair.
Jimson Security Service v. Joseph Mdegela
Termination of employment - business in which the respondents were engaged
requires unqualified good faith and honesty, integrity, trust and confidence -
Respondents showed lack of good faith 'as well as gross negligence and
xxviii
misconduct – Whether termination was the appropriate sanction to the
respondents.
Termination of employment - By virtue of his office, appellant's disciplinary
authority was the respondent's Board of Directors – Appellant informed orally
by the Board of its decision to terminate the Appellant – Letter of termination
signed by the Acting Human Resources Director of the respondent – Whether the
appellant's dismissal from office was made by the proper authority and whether
the termination was substantively and procedurally unfair.)
Hamad Koshuma v. Tanzania Ports Authority
Termination of employment – dishonest – whether it may attract termination of
employment.
Paschal Bandiho v. Arusha Urban Water Supply and Sewerage Authority
(AUWASA)
Termination of employment – employee commits a misconduct which is also a
criminal offence - rules governing termination where conduct amounts to
criminal offence.
Peter Maghali v. Super Meals Limited
Termination of employment – fairness of termination – What constitutes fair
termination - Regulation 13 of the Code of Good Practice Rules, 2007.
Termination of employment – fixed term contract – contract renewed after every
three months for four years - whether principles on fair termination apply to the
contract - section 35 of the ELRA
Termination of employment – Investigations prior to hearing – charge formulated
without conducting investigation – whether rule 13 (1) of the Code of Good
Practice Rules, 2007 was contravened
xxix
Paschal Bandiho v. Arusha Urban Water Supply and Sewerage Authority
(AUWASA)
Termination of employment - Issue whether the appellant had fair reasons to
terminate the respondents was not subject of revision before the High Court
because it was never raised before the CMA – Issue was raised suo motu by the
High Court - Whether the High Court raised the issue without affording the
parties the right to be heard on it and whether it was inextricable to determine
the grounds for revision without referring to substantive fairness of the
termination.
Termination of employment – operational requirements – appellant terminated
by the respondent as the latter was undergoing structural reorganization –
whether the appellant was lawfully terminated.
Terevael M. Ngalami v. Kampuni Ya Simu (TTCL)
Termination of Employment – Reasonable Expectation of Renewal-
Interpretation of reasonable expectation of renewal – Whether under the
circumstances there was reasonable expectation of renewal- Section 36 (a) (iii)
of the Employment and Labour Relations Act [Cap 366 R.E. 2019] and Rule 3 (3)
and (4) of Employment and Labour Relations (Code of Good Practice) Rules,
2007, Government Notice No. 42 of 2007.
Asanterabi Mkonyi v. Tanesco
Termination of employment – Reasons for termination - Whether the reason for
termination was disclosed and if so, whether it was proper to give a different
reason from the one stated in the termination letters.
Termination of employment – remedies – whether unfair termination on
substantive and procedural matters attract the same penalty.
Termination of Employment – Right to be Heard - Whether the termination of the
appellant from the employment was for valid reasons and if the procedure was
complied with - Rule 13 of the Employment and Labour Relations (Code of Good
Practice) Rules, Government Notice No, 42 of 200
Adela Damian Msanya v. Tanzania Electricity Supply Co. Ltd
xxx
Termination of employment – substantive and procedural fairness – whether
termination of employee made by improper authority amounts to unfair
termination.
Termination of employment – termination by agreement – whether the common
law doctrine of estoppel applies.
Muhimbili National Hospital v. Linus Leonce
Termination of employment – termination letter – whether it was unauthentic and
illegal for not being signed by an authorized officer- Paragraph 9(1), (2) and (3)
of the first schedule to the Tanzania Ports Act No. 17 of 2004
Time limitation – record of appeal – whether there is no time limit for effecting
service of letters requesting for certified copies of proceedings to the respondents
- Rule 90(3) of the Rules.
Novatus Williams Nkwama v. TUGHE
Time limitation - whether the application which was lodged by the appellants in
the High Court, to challenge the award of the CMA, was lodged out of the time
prescribed by the law and whether law prescribes the time limit within which to
serve the award to the parties - section 91 (1) (a) of the ELRA
William Mwakitalu & 29 Others v. PPF Pension Funds
Tort – malicious prosecution – ingredients to be proved thereto.
North Mara Gold Mine Limited v. Joseph Weroma Dominic
Wrong citation - Appeal – whether an appeal which emanates from the ruling
and drawn order of the High Court striking out an application for wrong citation
of the applicable law was properly before the Court.
Masolwa D. Masalu v. The Attorney General & Another
xxxi
STATUTES JUDICIALLY CONSIDERED
1. The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act,
[Cap. 310 R.E. 2019]
• Ezekiah T. Oluoch v. The Permanent Secretary The Permanent
Secretary, President’s Office Public Service Management & 4
Others
• Masolwa D. Masalu v. The Attorney General, District Executive
Director, Mbozi District Council
2. Judicature and Application of Laws, [Cap 358 R.E. 2002]

• Ezekiah T. Oluoch v. The Permanent Secretary, President’s Office
Public Service Management & 4 Others
• North Mara Gold Mine Limited v. Isaac Sultan
• North Mara Gold Mine Limited v. Khalid Abdallah Salum
3. Appellate Jurisdiction Act [Cap. 141 R.E. 2002]

• Bernard Gindo v. ToL Gases Limited
• Celestine Samora Manase & 12 Others v. Tanzania Social Action
Fund & Another
• Chama cha Walimu Tanzania v. The Attorney General
xxxii
• CMA – CGM Tanzania Limited v. Justine Baruti
• Elia Kasalile & 17 Others v. Institute of Social Work
• Gaspar Peter v. Mtwara Urban Water Supply (MTUWASA)
• Generator Logic v. Eli Mukuta
• Grumeti Reserves Ltd. v. Morice Akiri
• Juma Busiya v. Zonal Manager South Tanzania Postal
Corporation
• Khadija Lumbi v. Tanzania Revenue Authority
• Msolwa Masalu v. The Attorney General & Another
• Nyanza Road Works Limited v. Giovanni Guidon
• Patrick Magologozi Mongella v. The Board of Trustees of the
Public Service Social Security Fund
• Peter Mabimbi v. Minister for Labour and Youths Development &
2 Others
• Peter Samanya Msacky v. Chief Executive Officer Agricultural
Seed Agency & 2 Others
• Remigious Muganga v. Barrick Bulyanhulu Gold Mine
• Serenity on the Lake v. Dorcus Martin Nyanda
• Tanzania Posts Corporation v. Jeremiah Mwandi
• The Copycat Tanzania Limited v. Mariam Chomba
• TUICO v. The Chairman Industrial Court of Tanzania & Another
• Unilever Tanzania Limited v. Davis Paulo Chaula
4. Civil Procedure Act, [Cap 33 R.E. 2019]

• Barclays Bank Ltd v. Phylisian Hussein Mcheni
• Barclays Bank Tanzania Limited v. Phylisian Hussein
• Benedict Mumello v. Bank of Tanzania
• Elia Kasalile & 20 Others v. The Institute of Social Work
xxxiii
• Generator Logic v. Eli Mukuta
• Hassan Twaib Ngonyani v. Tazama Pipeline Limited
• Mantra Tanzania Limited v. Joaquim Bonaventure
• MIC Tanzania v. Albert P. Milandi
• North Mara Gold Mine Limited v. Khalid Abdallah
• North Mara Gold Mine Ltd v. Isaac Sultan
• Remigious Muganga v. Barrick Bulyanhulu Gold Mine
• Serenity on the Lake v. Dorcus Martin Nyanda
• Unilever Tanzania Tea Limited v. Davis Paulo Chaula
5. Criminal Procedure Act [Cap 20 R.E. 2019]

• MIC Tanzania Ltd v. Albert P. Millanzi
6. National Defence Act 1966 (No. 24)

• MIC Tanzania Ltd v. Albert P. Milanzi
7. The Oaths and Statutory Declarations Act [Cap 34 R.E. 2019]

• MIC Tanzania Ltd. v. Albert P. Milanzi
• The Copycat Tanzania Limited v. Mariam Chomba
• Unilever Tea Tanzania Limited v. Davis Paulo Chaula
8. The Banking and Financial Institutions Act, 2006

• Haider Mwinyimvua & 99 Others v. DIT & Another
9. Evidence Act, [Cap 6 R.E. 2002]
xxxiv
• North Mara Gold Mine v. Joseph Weroma Dominic
• St. Joseph Kolping Secondary School v. Alvera Kashushura
10. The Law of Limitation Act, [Cap 89 R.E. 2002]

• Barclays Bank Tanzania Limited v. Phylisian Hussein Mcheni
• Masolwa D. Masalu v. The Attorney General & Another
11. Constitution of the United Republic of Tanzania 1977

• Elia Kasalile & 20 Others v. The Institute of Social Work
• National Microfinance Bank Limited v. Neema Akeyo
• Severo Mutegeki & Another v. Mamlaka ya Maji Safi na Usafi wa
Mazingira Mjini Dodoma (DUWASA)
12. Written Laws (Miscellaneous Amendments) (No. 3) Act 2018

• Bernard Gindo v. ToL Gases Limited
• Gaspar Peter v. Mtwara Urban Water Supply Authority
(MTUWASA)
13. The Land Disputes Courts Act, [Cap. 216 R.E. 2002]
• Edger Kahwili v. Amer Mbarak & Another.
14. Interpretation of Laws Act [Cap 1 R.E. 2019]

• CMA CGM Tanzania Ltd v. Justine Baruti
• National Microfinance Bank v. Leila Mringo & 2 Others
• National Microfinance Bank v. Victor Modest Banda
xxxv
15. Public Service (Negotiating Machinery Act 2003
• Chama cha Walimu Tanzania v. AG
16. Tax Revenue Appeals Act [Cap 408 R.E. 2019]
• Pangea Minerals v. Gwandu Majali
17. The Social Security Laws (Amendments) Act, 2012

18. Employment Ordinance Cap 366

• Hassan Twaib Ngonyani v. Tazama Pipeline
• Paul Yustus Nchia v. National Executive Secretary CCM &
Another
19. Public Service Act [Cap 298 R.E. 2002]

• Joseph Khenani v. Nkasi District Council
20. Security of Employment Act [Cap 387 R.E. 2002]

• Hassan Twaib Ngonyani v. Tazama Pipeline Limited
• John Bosco Kazinduki v. Minister for Labour & Another
• Juma Busiya v. Zonal Manager, South Tanzania Postal
Corporation
xxxvi
21. Industrial Court of Tanzania Act, 1967 [Cap 60 R.E. 2002]
• Tanzania Breweries Limited v. Mohamed Kazingumbe
• Terevael M. Ngalami v. Kampuni ya Simu (T) TTCL
22. Written Laws (Miscellaneous Amendments) Act, 2016, No.13 of 2016

• Joseph Khenani v. Nkasi District Council
23. Electronic Transactions Act, 2015 No. 13/2015

• Magnet Construction Company v. Bruce
24. Law of Contract Act Cap 345

• Muhimbili National Hospital v. Linus Leonce
25. Kevala Building (Lease and Rent Control) Act 1965 - India
xxxvii
ILO CONVENTIONS/RECOMMENDATIONS AND OTHER
INTERNATIONAL INSTRUMENTS JUDICIALLY CONSIDERED
1. Termination of Employment Convention, 1982 (No. 158)

• St. Joseph Kolping Secondary School v. Alvera Kashushura
2. Discrimination (Employment and Occupation) Convention, 1958 (No.

111)
xxxviii
STATUTORY PROVISIONS REFERRED TO
Appellant Jurisdiction Act [Cap 141 R.E.2019]
s 3A
s 4(2), (3), (4) and (5)
s 5(1) (c ), (2) (a), (d)
Banking and Financial Institutions Act. 2006
s 41(1)(a)
s 61(1)
Constitution of United Republic of Tanzania
a 13(6)(a)
Civil Procedure Code [Cap 33 R.E.2019]
s 38(1)
s 70(2)
s 95
Order VIII rule 7
Order IX, rule 13
Order XXI rule 57
Order XXXIX rule 1 (1)
Order XVIII rule 5
Order XLIII (1)(i)
Criminal Procedure Act, [Cap 20. R.E.2019]
s 210(1)(a)
Discrimination (Employment and Occupation) Convention, 1958
a1
xxxix
Electronic Transaction Act, 2015
s 18
Employment and Labour Relations (Code of Good Practice) GN. No

42/2007
r 3 (3) and (4)
r 4(2)
r 7(2) (b)
r 12(1)(iv) and (v), (2),(3),(4) and (5)
r 13(1), (3), (8) and (10)
r 24 (11) (a) and (c)
r 38(i)(d), (iii)
r 94(1) (f) (11)
Employment and Labour Relations Acts [Cap. 366 R.E. 2019]

s 7(9)
s 14 (1) (a) and (b) (i)
s 25(1)
s 35
s 36 (a) (iii)
s 37 (1), (2) (a) (c), (4)
s 38
s 39
s 40 (1) (a) and (3)
s 42 (1) and (2)
s 43
s 44(1)
xl
s 47 (c)
s 53(1)
s 57(1)
s 59
s 62(4)(a)
s 86
s 87(5)
s 88(9)
s 91 (1), (2) and (3)
s 93(4) and (7)
s 94 (1) (e) and (f)
s 99 (1) (a)
s 186 (b)
Employment and Labour Relations (General) Regulations GN No.47 0f

2017
r 16(1), (2)
Industrial Court of Tanzania Act [Cap. 60 R.E 2019]

s 8(a)
s 28(2)
Interpretation of Laws Act, [Cap 1 R.E. 2019]
s 60 (1) (f)
Law of Contract Act, [Cap 345. R.E.2019]

s 2(1)(a)
Law of Limitation Act [Cap 89 R.E 2002]

s3
xli
s 43
s 46
Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap 310
R.E. 2002]
s 17(5)
s 19(2),(3)
Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial
Review Procedure and Fees) Rules, 2014 GN. No. 324 of 2014
r 5(1) (2(3)
Local Government (Teachers Service Scheme) of 2016 G.N. No. 311 of 2016
r 37
Standing Orders for Public Service of 2009
s 19 (1) (2)
Judicature and Application of Laws Act [Cap 358 R.E. 2002]

s 2(1) and (3)
Tanzania Court of Appeal Rules, 2009- GN. No. 368 of 2009
r 4(2)(a),(b),(c)
r 10
r 11 (3)
r 19(1)
r 36 (1)
r 45
r 63(2)
r 66 (1) (a), (6)
r 84 (1)
r 89(3)
r 90(1),(3)
r 94(1),(2),(3)
r 96 (1), (2), (3),(7)
r 97(1)
r 96 (8)
xlii
r 106 (1),(7),(10)
r 107 (1),(12)
r 113(1)
Tanzania Evidence Act [ Cap 6 R.E.2019]

s 110
s 111
Tax Revenue Appeals Act [Cap. 408 R.E. 2019]
s 25 (2)
Muhimbili National Hospital Act No. 3 of 2002

s 12 (c)
Oaths and Statutory Declarations Act [Cap 34 R.E. 2019]
s2
s 4 (a)
s 10
Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN. No.
67 of 2007
r3
r 4 (2)
r 5 (1),(2),(3)
r 10(2)
r 12(1)
r 17(1)
r 19(2)(a)
r. 21
r 25 (1)
r 30(1)
xliii
r 32 (2) (d)
Labour Institutions (Ethics and Code of Conduct for Mediators and
Arbitrators) Rules, G.N. No. 66 of 2007
r 5 (h) and (i)
Labour Court Rules G.N. No. 106 of 2007

r 3(1)
r 24 (11)(a) and (c)
r 28(1)
r 38 (1) and (2)
r 50(2)
r 55(1),(2)
Labour Institutions Act, [Cap 300 R.E 2019]

s 12
s 50
s 55 (1)
s 57
Land Disputes Courts Act [Cap 216 R.E. 2019]
s 23(1),(2)
Security of Employment Act [Cap. 387 R.E. 2002]
s 40 (1) (a)
Public Service (Negotiating Machinery) Act, 2003;

s 26 (2) (d)
s 32A
Public Service Regulations, 2003
xliv
r 29
r 40(1)
r
xlv
CASES REFERRED TO
A
AAR Insurance (T) Ltd. v. Beatus Kisusi, Civil Appeal No. 67 of 2015
Abbas Sherally & Another v. Abdul S. H. M. Fazalboy, Civil
Application No. 33 of 2002
Abdi Adam Chakuu v. The Republic, Criminal application No. 2 of 2012
Abdon Edward Rwegasira v. The Judge Advocate General, Criminal Application
No. 5 of 2011
Addissery Raghavan v. Cheruvalath Krishnadasan, Civil Appeal No. 2528-29 of
2020
Aero Helicopter (T) Ltd. v. F. N. Jansen [1990] T.LR. 142
Africa in Almalgated Beverage Industries (Pty) v. Jacker [1993] 14 ILJ
12 33 (LAC)
African Marble Company Limited (AMC) v. Tanzania Saruji Corporation TSC,
Civil Application No. 132 of 2005
Aikaeli Mbowe & Another v. Alex O. Lema, Civil Appeal No. 84 of 2001
Air Services Ltd v. Minister for Labour and 2 Others, (1996) T.L.R. 217
Aliseo Peter Nditi v. KCB Bank Tanzania Limited, Civil Application No. 59 of
2015
Aloyce Msele v. The Consolidated Holding Corporation, Civil Appeal No. 11 of
2002
Amani Girls Home v. Issack C. Kamela, Civil Application No. 18 of 2014
Andrew Mseul and 5 Others v. The National Ranching Company Ltd and
Another, Civil Appeal No. 205 of 2016
Anthony Ngoo and Another v. Kitinda Kimaro, Civil Appeal No. 25 of 2014
Antony J. Tesha v. Anita Tesha, Civil Appeal No. 10 of 2003
Arusha Hardware Traders Ltd and 2 others v. M/s Exim Bank Tanzania Limited,
Atlas Copco Tanzania Limited v. Commissioner General, Tanzania Revenue
Authority, Civil Appeal No. 167 of 2019
Attilio v. Mbowe (1969) HCD 284
Attorney Ajar Patel v. Abdulrazak Jussa Suleiman, ZNZ Civil Application No. 2
of 2003
Attorney General & 2 Others v. Eliud Massawe & 104 Others, Civil Appeal No.
82 of 2002
xlvi
Attorney General v. Ahmed Yakuti, Civil Appeal No. 49 of 2004
Attorney General v. Mwahezi Mohamed and 3 Others, Civil Application No. 314
/12/ of 2020
Attorney-General for Canada v. Hallet & Carey Ltd. [1952] A.C. 427
Augustino L. Mrema v. R., Cr. Appeal NO. 61 OF 1988
Augustino Masonda v. Widmel Mushi, Civil Application No. 383/13 of 2018
Awiniel Mtui & Two Others v. Stanley Ephata Kimambo (Attorney for Ephata
Mathayo Kimambo), Civil Appeal No. 97 of 2015
B
Bariki Israel v. R., Criminal Application No. 4 of 2011
Barnabas Msabi Nyamonge v. Assistant Registrar of Titles and Shufaa Jambo
Awadhi, Civil Appeal No. 176 of 2018
Barsi Light Rly. Co. Ltd. v. K. N. Ioglekar, AIR 1957 SC 121
Bazon v. Attrinchan Urban District (1903, 1KB 948)
Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002
Bharya Engineering & Contracting Co. Ltd v. Hamoud Ahmed Nassor, Civil
Application No. 342/01 of 2017
Blueline Enterprises Limited v. East Africa Development Bank, Civil Application
No. 103 of 2003
Board of Trustees of the Public Service Pensions Fund v. lalia Mayanja and
Godfrey Ngonyani, Labour Revision No. 248 of 2017
Bulyanhulu Gold Mines (T) Ltd v. Nichodemus Kajungu and 1151 Ors; Civil
Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007
C
Cable Television Network (CTV) Ltd v. Athumani Kuwinga, Revision No 94 of
2009
Castellow v. Somerset County Council [1993] 1 All E.R. 952
Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania
Mkunde Athanase, Civil Appeal No. 257 of 2020
Celestine Samora Manase & 12 Others v. The Tanzania Social Action Fund and
CGM Tanzania Limited v. Justine Baruti, Civil Appeal No. 23 of 2020
Chacha S/o Ghati Magige v. Republic, Criminal Appeal No. 406 of 2017
xlvii
Chama Cha Walimu Tanzania v. The Attorney General, Civil Application No. 15
of 2008
Chandrakant Joshubhai Patel v. Republic [2004] T.L.R. 218 at 225.
Chandrankat Joshubhai Patel v. The Republic, [2004] T.L.R. 218
Charles Christopher Humphrey Kombe v. Kinondoni Municipal
Council, Civil Appeal No. 81 of 2017
Charles Mabula v. Republic, Criminal Appeal No. 191 of 2012
China Henan International Co-Operation Group v. Salvand K.A. Rwegasira,
Citibank Tanzania v. Tanzania Telecommunication Company Limited and
Others, Civil Application No. 64 of 2003
CMA - CGM Tanzania Limited v. Justine Baruti, Civil Appeal No. 23 of 2020
Communication and Transport Workers Union of Tanzania COTWU (T) v.
Fortunatus Cheneko, Complaint No. 27 of 2008 (HC)
Credo Siwale v. The Republic, Criminal Appeal No. 417 of 2013 and Mbogo and
Another v. Shah [1968] EA 93
D
Dar es Salaam City Council v. Jayantilal P. Rajani (CAT) Civil Application No.
27 of 1987
Dierks v. University of South Africa (1999) 20 ILJ 1227
District Executive Director, Kilwa District Council v. Bogeta Engineering
Limited, Civil Appeal No. 37 of 2017
Dr. Noordin Jella v. Mzumbe University, Complaint No. 47 of 2008
E
East Africa Development Bank v. Blueline Enterprises, Civil Application No 47
of 2010
Ecobank Tanzania Limited v. Future Trading Company Limited, Civil Appeal
No. 142 of 2017
Ecobank Tanzania Limited v. Future Trading Company Limited, Civil Appeal
No. 82 of 2019
Edina Adam Kibona v. Absolom Swebe (Sheli), Civil Appeal No. 286 of 2017
Edward Bachwa & Three Others v. The Attorney General & Another, Civil
Election Commission of India v. Subramantan Swamy, SC 1810
Elia Kasalile & 20 Others v. The Institute of Social Work, Civil Appeal No. 145
of 2016
xlviii
Elia Kasalile and 17 others v. Institute of Social Work; Civil Application No.
187/18 of 2018
Elia Kasalile and 20 Others v. The Institute of Social Work, Civil Appeal
No. 145 of 2016
Elidhiaha Fadhili v. The Executive Director, Mbeya City Council, Civil
Appeal No. 24 of 2014
Elifazi Ntatega & 3 Others v. Caspian Mining Ltd, Miscellaneous Labour
Eliya Anderson v. Republic, Criminal Application No. 2 of 2013
Elizabeth Jerome Mmassy v. Edward Jerome Mmassy and Six Others, Civil
Esanyi v. Solonki [1968] EA 218
Eshie Mossy Mbaruku v. Bi Kungwa Rajah, Civil Appeal No. 58 of 2013
Eusebia Nyenzi v. Republic, Criminal Application No. 6 of 2013
F
Fabian Akonaay v. Mathias Dawite, Civil Application No. 11 of 2003
Farrel v. Alexander [1976] 2 ALL ER 721, P. 736
Fatuma A. Simbambili v. Dokasi Mhina, Civil Appeal No. 84 of 2015
Felician Rutwaza v. World Vision Tanzania, Civil Appeal No. 213 of 2019
Felician Rutwaza v. World Vision Tanzania, Criminal Appeal No. 213 of 2019
Felix Turnbo Kisima v. TTCL Limited and Another, Civil Application No. 1 of
1997
Finca Tanzania Ltd v. Wildman Masika and 11 Others, Civil Appeal
No. 173 of 2016
Finca Tanzania Ltd v. Wildman Masika and 11 Others, Civil Appeal No. 173 of
2016
Fisher v. Bell [1961] 1 Q.B. 394
Fortunatus Masha v. William Shija and Another [1997] T.L.R. 154
Foschini Group v. Commission for Conciliation, Mediation and Arbitration and
Others (2008) 29 ILJ 1515 (LC)
Frederick J. Chacha v. Stemo Security Co. Ltd., Labour Revision No. 92 of 2011
Fredrick Mizambwa v. Tanzania Ports Authority, Revision No. 220 of 2013
G
Gaspar Peter v. Mtwara Urban Water Supply Authority (Mtuwasa), Civil Appeal
No. 35 of 2017
xlix
Gaspar Peter v. Mtwara Urban Water Supply Authority, Civil Appeal No. 35 of
2017
Gatirau Peter Munya v. Dickson Mwenda Kithinji & Three Others [2014] eKLR
Geita Gold Mining Co. Ltd v. Jumanne Mtafuni, Civil Appeal. No. 30 of 2019
Girango Security Group v. Rajabu Masudi Nzige, Labour Revision No. 164/2013
Godbless Jonathan Lema v. Mussa Hamis Mkanga & Two Others, Civil Appeal
No. 47 of 2012
Gujarat v. Consumer Education and Research Centre (1981) AIR GU] 223]
Gurmit Singh v. Meet Singh & Another, Civil Appeal No. 256 of 2018
H
Halais Pro Chemie v. Wella A.G. [1996] T.L.R. 269 (CA)
Halfan Sudi v. Abieza Chichili [1998) T.L.R 527 at page 529
Halima Hassan Marealle v. Parastatal Sector Reform Commission & Another,
Civil Application No 84 of 1999
Hamis Chuma @ Hnado Mhoja and Another v. The Republic, Criminal
Hamis Said Mkuki v. Fatuma Ally, Civil Appeal No. 147 of 2017
Hamisi Chuma@ Hando Mhoja and Another v. Republic, Criminal Appeal No.
371 of 2015
Hamisi Mdida and Another v. The Registered Trustees of Islamic Foundation,
Civil Appeal No. 59 of 2020; and
Harrison Mandali & Others v. The Registered Trustees of the Archdiocese of Dar
es Salaam, Civil Application No. 482/17 of 2017
Hasmukh Bhangwanji Masrani v. Dodsal Hydrocarbons and Power (Tanzania)
PVT Limited & Three Others, Civil Application No. 100 of 2013
Heat Exchangers (Pty) Ltd v. Victor J L De Araujo & 2 Others, Case No: JR
155/16
Henry Hidaya Ilanga v. Manyema Manyoka [1961] E.A. 705
Henry Leonard Maeda and other v. Ms. John Anael Mongi, Civil Application No.
31 of 2013
Hezron M. Nyachiya v. Tanzania Union of Industrial and Commercial Workers
and Another, Civil Appeal No. 79 of 2001
Hosia Lalata v. Gibson Mwasote [1980] T.L.R. 154
Hotel Travertine Limited & 2 Others v. National Bank of Commerce [2006]
T.L.R. 133.
I
l
I.S. Msangi v. Jumuiya ya Wafanyakazi Tanzania & Another, Civil Appeal No.
26 of 1991
Independent Power Tanzania Ltd & Another v. Standard Chartered Bank (Hong
Kong) Limited, Civil Revision No. 1 of 2009
Insignia Limited v. Commissioner General, Tanzania Revenue Authority, Civil
International Medical and Technological University v. Eliwangu Ngowi, HC,
Labour Division at Dar es Salaam, Revision No. 54 of 2008
Iringa International School v. Elizabeth Post, Civil Appeal No. 155 of
2019
Isaack Sebegele v. Tanzania Portland Cement Co. Ltd, Civil Reference No. 26 of
2004
J
J.H. Komba, Esq, Ex-Employee, E.A. Community v. The Regional Revenue
Offcer, Arusha & Two Others, Ar, Civil Application No. 3 of 2002
Jafari s/o Ramadhani v. The Republic, Criminal Appeal No. 311 of 2017
Jaffari Sanya Jussa and Ismail Sanya Jussa v. Saleh Sadiq Osman, Civil Appeal
No. 54 of 1997
James Funke Gwagilo v. Attorney General [2004] T.L.R. 161
Japhet Msigwa v. Republic, Criminal Application No. 7 of 2011
Jimson Security Service v. Joseph Mdegele, Civil Appeal No. 152 of 2019
John Chuwa v. Anthony Ciza [1992] T.L.R. 233
John Cornel v. A. Grevo (T) Ltd, Civil Case No. 70 of 1998
John David Kashekya v. The Attorney General, Civil Appliec1tion No. 1 of 2012
John Morris Mpaki v. NBC Ltd and Ngalagila Ngonyani, Civil Appeal No. 95 of
2013
Jonathan M. Mwamboza v. Bishop Dr. Stephen Munga & Another, Labour
Dispute No. 1 of 2011
Jooste v. Transnet Ltd t/a South African Airways [1995] 16 ILJ 629
(LAC).
Joseph Elisha vs. Tanzania Postal Bank, Civil Appeal No. 157 of 2019
Joseph M. Mutashobya v. M/S Kibo Match Group Limited [2004] T.L.R 242
Joseph Mahona @ Joseph Mbije @ Maghembe Mboje and Another v. The
Republic, Criminal Appeal No. 215 of 2008
Julius Francis Ndyanabo v. The Attorney General [2004] T.L.R. 14
Juma Akida Seuchango v. SBC (Tanzania) Limited, Civil Appeal No. 7 of 2019
li
Junaco (T) Ltd and Another v. Harel Mallac Tanzania Limited, Civil Application
No. 473/ 16 of 2016
K
Kabula Luhende v. The Republic, Criminal Appeal No. 281 of 2014
Karata Ernest and Others v. The Attorney General, Civil Revision No.10 of 2010
Karim Kiara v. Republic, Criminal Application No. 4 of 2007
Katani A. Katani v. The Returning Officer, Tandahimba District and 2
Others, Civil Appeal No. 115 of 2011
Kemp t/a Centralmed v. Rawlins [2009] 30 ILJ 2677
Kenya Airways vs Nyanda Mgwesa Nyanda, Civil Appeal No. 23 of 2012,
Khadija Lumbi v. Tanzania Revenue Authority, Civil Appeal No. 240 of 2019
Khantibhai M. Patel v. Dahyabhai F. Minstry [2003] TLR 437
Kilombero Sugar Company Limited v. Commissioner General (TRA), Civil
Kombo Hamis Hassan v. Paras Keyoulous Angelo, Civil Appeal No. 14 of 2008
L
Lala Wino v. Karatu District Council, Civil Application No. 132/02 of 2018
Laurean Rugaimukamu v. The Editor, Mfanyakazi Newspaper and Another
[2001] T.L.R. 79.
Lekengere v. Minister for Tourism (2000) TLR
Lever Brothers Ltd v Bell (1931) 1 KB 557
Lindsey Petroleum Company v. Hurd and Others (1873-74) LR 5 PC 221
Lujuna Shuhi Ballonzi, Senior v. Registered Trustees of Chama cha Mapinduzi
[1996] T.L.R. 203
Lyamuya Construction Company Limited v. Board of Registered Trustees of
Young Women's Christian Association of Tanzania, Civil Application No. 2 of
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M
M/s Flycatcher Safaries Ltd v. Hon. Minister for Lands and Human Settlements
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M/s. Sri Raja v. Lakshmi Dyeing Works and Others v. Rangaswamy Chettiar
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Magnus K. Laurean v. Tanzania Brewaries Limited, Civil Appeal No. 25 of 2018
Makorongo v. Consigilio [2005] 1 EA 247
lii
Mandorosi Village Council and Two Others v. Tanzania Breweries Limited and
Four Others, Civil Appeal No. 66 of 2017
Manjit Singh Sandhu and 2 others v. Robiri R. Robiri, Civil Application No. 15
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Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010
Margwe Erro and Two Others v. Moshi Bahalulu, Civil Appeal No 111
Martin D. Kumalija & 117 Others v. Iron and Steel Ltd, Civil Application No.
70/18 of 2018
Mashaka Henry v. Republic, Criminal Application No. 2 of 2012
Mathias Eusebi Soka v. The Registered Trustees of Mama Clementina
Foundation & Two Others, Civil Appeal No.40 of 2001
Mayira B. Mayira and Four Others v. Kapunga Rice Project, Civil appeal No.
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Mbeya – Rukwa v. Jestina Mwakyoma (2003) T.L.R. 251
Mbeya- Rukwa Auto Parts and Transport Ltd. v. Jestina George Mwakyoma,
(2003) T.L.R. 251
Mbowa v. East Mengo Administration [1972] EA 353
Meenakshi Mills, Madurai v. The Commissioner of Income Tax, Madras (1957)
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Melchiades John Mwenda v. Gizelle Mbaga (Administratrix of the Estate of John
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Mhajiri Uladi and Another v. Republic, Criminal Appeal No. 234 of 2020
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MIC Tanzania Limited and Three Others v. Golden Globe International Services
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Michael Kirobe Mwita v. AAA Drilling Manager [2014] LCCD 1
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Mohamed Iqbal v. Esrom M. Maryogo, Civil Application No. 141/01 of 2017
Mohamed Said @ Muddi v. Republic, Criminal Appeal No. 316 of 2014
Mondorosi Village Council and 2 Others v. Tanzania Breweries Limited & 4
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liii
Mondorosi Village Council and Two Others v. Tanzania Breweries Limited and
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Moses Mwakibete v. The Editor - Uhuru and Two Others [1995] T.L.R. 134
Mtambua Shamte & 64 Others v. Care Sanitation and Suppliers, Revision No.
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Mtenga v University of Dar es Salaam (1971) HCD 247
MUCOBA Bank PLC v. Herry Bwende, Labour Revision No. 32 of 2017
Muhidin Ally @ Muddy and 2 Others v. Republic, Criminal Appeal No. 2 of 2006
Mukisa Biscuits Manufacturing Company Ltd vs West End Distributors Ltd
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Municipality of Mombasa v. Nyali Limited [1963] EA 371
Murtaza Ally Mangungu v. The Returning Officer of Kilwa and two Others, Civil
Mwita s/o Mhere v. The Republic, [2005] T.L.R.107
N
NAFCO v. Mulbadaw Village Council & Others [1985] T.L.R. 91
Nakomolwa Matepeli Shila v. Mwanahamisi Ally Nongwa (Legal Representative
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National Bank of Commerce Limited v. National Chicks Corporation Limited and
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National Insurance Corporation v. Maligisa Manyangu and 24 Others, Civil
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National Microfinance Bank PLC v Oddo Odila Mbunda, Civil Appeal No. 95 of
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National Microfinance Bank v. Leila Mringo and 2 others; Civil Appeal No. 30
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National Microfinance Bank v. Muyodeso, Criminal Appeal No. 289 of 2019
Nestory Simchimba v. The Republic, Criminal Appeal No. 454 of 2017
Ngasa Kapuli @ Sengerema v. Republic, Criminal Appeal No. 160 "B" of 2014
liv
Njake Enterprises Limited v. Blue Rock Limited and Another, Civil Appeal No.
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NMB BANK PLC v. Andrew Aloyce, Revision No. 1 of 2013
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O
Olmeshuki Kisambu v. Christopher Nain’gola [2002] TLR 280 at 283
Omar y Makunja v. Republic, Criminal Application No. 22 of 2014
Osward Masatu Mwizarubi v. Tanzania Fishing Processing Ltd, Civil
P
Pangea Minerals Limited v. Gwandu Majali, Civil Appeal No. 504 OF 2020
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Patrobert Ishengoma v. Kahama Mining Corporation Ltd Barrick Tanzania
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Paul A. Kweka & Another v. Ngorika Bus Services and Transport Co. Ltd.,
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Paul Yustus Nchia v. National Executive Secretary Chama cha Mapinduzi, Civil
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Philip Tilya v. Vedasto Bwogi, Civil Application No. 546/01 of 2017
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Puma Energy Tanzania Ltd. v. Ruby Road Ways (T) Ltd, Civil Appeal No. 3 of
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R
Rahel Mbuya v. Minister for Labour and Youth Development and Another, Civil
lv
Rash Lal Yadav (Dr) v. State of Bihar, JT 1994 (4) SC 228
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Razia Jaffer Ali v. Ahmed Sewji and Five Others [2006] T.L.R 433
Roshan Meghee & Company Limited v. Commissioner General of Tanzania
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S
Sabastian Ndaule v. Grace Rwemafa, Civil Application No. 4 of 2014
Said Mohamed Nzegere v. Aarsleef Ban International, Labour Revision No. 17
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Salhina Mfaume & 7 Others v. Tanzania Breweries Co. Ltd, Civil Appeal No.
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Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd., Civil
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Samson Njarai v. Jacob Mesoviro, Civil Appeal No. 98 of 2015
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Sanai Murumbe and Another v. Muhere Chacha [1990] T.L.R 54
Sebastian Ndaula v. Grace Rwamafa, Civil Application No. 4 of 2014
Security Group (T) Ltd v. Samson Yakobo and 10 Others, Civil Appeal No. 76 of
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lix
ADELA DAMIAN MSANYA v. TANZANIA ELECTRICITY
SUPPLY CO.LTD
IN THE COURT OF APPEAL OF TANZANIA
AT ARUSHA
(MUGASHA, SEHEL, and KAIRO, JJ.A.)
CIVIL APPEAL NO. 305 OF 2019

(Appeal from the Ruling and decree of the High Court of Tanzania, Labour
Division, at Moshi, Dr. Fauz, J., dated 12th August, 2019 in Labour Revision
No. 28 of 2017)
Termination of Employment – Right to be heard - Whether the termination of the

appellant from the employment was for valid reasons and if the procedure was
complied with - Rule 13 of the Employment and Labour Relations (Code of Good
Practice) Rules, Government Notice No, 42 of 2007
Between 1/4/2005 and 6/10/2014, the appellant was employed as an accounts
clerk by the respondent. The employment was brought to a halt following
termination from the employment on allegations that, she had forged a form four
secondary school academic certificate. The termination was preceded by a
formal charge on the forgery which was denied by the appellant in her answer to
the charge. Subsequently, a disciplinary inquiry committee was convened, a
hearing conducted and upon being found guilty, she was terminated from the
employment. Aggrieved, the appellant referred the matter to the Commission for
Mediation and Arbitration (CMA) challenging her termination on the ground
that it was procedurally unfair. The arbitrator concluded that there was no fair
reason for terminating the appellant's employment and thus proceeded to give
her the award of being reinstated without loss of remuneration or else the
respondent pays to her a total of TZS 24,000,000/= for unfair termination.
The respondent lodged an application seeking to revise the decision of the CMA.
The High Court (Twaibu, J as he then was) after hearing the parties' submissions
and re-evaluating the evidence on the record reversed the CMA's award having
1
decided that, the termination was procedurally fair, Consequently, the
application for revision was granted and the CMA award was set aside, hence
this appeal.
Held: (i) Sub rules (1), (2) and (3) of Rule 13 of the Code of Good Practice was
complied with to the letter by the respondent. The termination of the appellant
was for valid reasons as it was established that the appellant had breached the
disciplinary code of TANESCO having used a forged certificate to secure
employment.
Application dismissed
Statotory provisions referred to

(1) Rule 13 of the Employment and Labour Relations (Code of Good
Practice) Rules, Government Notice No, 42 of 2007;
(2) Section 62(4)(a) of the Employment and Labour Relations Act, 2004;
(3) Section 57(1) of the Labour Institutions Act, 2004.
Cases referred to
(1) Patrobert Ishengoma v. Kahama Mining Corporation Ltd Barrick
Tanzania Bulyanhulu), Minister for Labour Employment and Youth
Development and The Attorney General, Civil Application No.172 of
2016.
Mr. Akyoo, for Appellent

Mr. Kibamba, Principal State Attorney, Mr Musseti, Senior State Attorney and
Mr. Mahushi, State Attorney, for Respondent
JUDGMENT OF THE COURT

22nd February, 2022
2
MUGASHA, J.A.: In this appeal, the appellant is faulting the decision of the
High Court which was made in favour of the respondent on the fair termination
of the appellant from the employment. A brief background of the appeal goes
thus, between 1/4/2005 and 6/10/2014, the appellant was employed as an
accounts clerk by the respondent. The employment was brought to a halt
following termination from the employment on allegations that, she had forged
a form four secondary school academic certificate. The termination was
preceded by a formal charge on the forgery which was denied by the appellant
in her answer to the charge. Subsequently, a disciplinary inquiry committee was
convened, a hearing conducted and upon being found guilty, she was terminated
from the employment.
Aggrieved, the appellant referred the matter to the Commission for
Mediation and Arbitration (CMA) challenging her termination on the ground
that it was procedurally unfair. Before the CMA, the respondent paraded two
witnesses namely: Nelson Mefaly Mhanze (DW1), the Examination officer at
the National Examination Council of Tanzania (NECTA). He recounted that the
certificate bearing index No. 133/21 of 1988 was forged on account of the
following: one, the examination centre coded S133 is of Minaki Secondary
School and not Kirua Secondary School; two, index number 133/21 in CSEE
1988 belongs to Daudi Bura and not Adella Msanya; three, the printing paper
used to make the certificate differs from the certificates that were issued to
candidates who sat for CSEE 1988; four, there is no school called Kirua Vunjo
rather Kirua Secondary school. This was opposed by the appellant who in her
evidence, claimed to have graduated at Kirua Vunjo Secondary School as per
statement of results from the NECTA which showed that her index number was
S. 372/01 and as such, she maintained that the NECTA official made errors by
issuing her a certificate with index number S.133/21.
In resolving the issue as to whether the termination was procedurally fair
or not, the arbitrator held in favour of the appellant having reasoned that, the
appellant was denied time to organise her evidence which entailed a follow up
at the NECTA and as such, she was denied her fundamental right to be heard.
As to the issue surrounding the validity or otherwise of the certificate at the time
of being employed, the arbitrator right away ruled that she had none because the
certificate presented to the respondent was not valid. That notwithstanding, the
arbitrator concluded that there was no fair reason for terminating the appellant's
employment and thus proceeded to give her the award of being reinstated
3
without loss of remuneration or else the respondent pays to her a total of TZS
24,000,000/= for unfair termination.
Undaunted, the respondent lodged an application seeking the indulgence
of the High Court to revise the decision of the CMA. The High Court (Twaibu,
J as he then was) after hearing the parties' submissions and re-evaluating the
evidence on the record reversed the CMA's award having decided that, the
termination was procedurally fair considering that the appellant was given about
four months to prepare herself before the hearing at the disciplinary committee
and as such, she had opportunity to liaise with the NECTA regarding the
questionable certificate. The learned High Court Judge further reasoned that, in
the event the CMA held that the appellant did not possess a valid certificate at
the time of securing employment, her termination on the ground of forgery was
justified and as such, the termination was fair both substantively and
procedurally. Consequently, the application for revision was granted and the
CMA award was set aside, hence this appeal. The appellant has presented a
memorandum of appeal fronting nine (9) grounds as follows:
1. That, the learned Honourable Judge of the High
Court sitting on revision erred in law and in fact by failure
to hold that the appellant was denied her fundamental right
of fair hearing at the disciplinary Committee held on
19/9/2014 despite her explicit request that the employer
should adjourn hearing to wait statements of Result from
National Examination (NECTA); which conduct
ultimately led to denial of right to be heard which is
contrary to rules of natural justice.
2. That, the learned trial Judge of the High Court erred in
law and in fact by failure to find that the appellant was
denied her statutory right to be represented under section
62(4)(a) of the ELRA, 2004, whereas she was entitled to
have a representative from her trade union (TUICO) or her
fellow employee of choice and that one Daniel Gwatu was
not her representative of her choice rather a person brought
at the disciplinary committee to serve interest of the
respondent.
3.That the learned Judge erred in law and in fact by
holding that the appellant was given four months and a
half to prepare for disciplinary hearing while there is no
4
evidence to show that she was indeed informed of any
disciplinary hearing or given notice of hearing four
months and half prior to the date of disciplinary hearing.
4. That, the learned Judge erred in law and in fact by
failure to hold that there is unfairness in procedure after
having clearly found that the proceedings of the
disciplinary committee did not show whether the
committee explained to appellant her right to appeal to
Director General; whereas that is mandatory requirement
under Rule 13(10) of the Code of Good Practice Rules
2007 G.N. No. 42 of 2007.
5 That, the learned trial judge of the High Court erred in
law and in fact by holding that the appellant’s certificate
was a forgery without comparing those certificates and on
disregarding of direct evidence before the CMA that there
is no forgery rather than there are humanitarian errors
committed by NECTA itself where in the certificate the
school centre No. was wrongly written, which fact was
latter verified certified and informed by E G. Kasuga head
of the Examination Council at NECTA.
6.That, the learned trial judge of the High Court erred in
law and in fact to conclude that the appellant's name was
not in the list of students who sat for CSEE in November,
1988 while Mr. N. M. Muhanze failed to produce the said
list of 1988 before the CMA and instead produced
irrelevant list of 1989.
7. That, the learned trial judge of the High Court erred in
law
and in fact by easily believing the allegation of N.M.
Muhanze examination Officer who said EG. Kasuga who
he admitted was a senior officer and head of the
examination department at NECTA, was not among
officers of NECTA who signed statement of results in
October 2014, while there is no evidence to suggest that
Mr. Kasuga was not authorised to sign as he deed, also no
evidence that officers of NECTA sign statement of results
by roster.
5
Jaw and in fact by holding that the CMA did not
passionately and correctly consider the matter, whereas
there was clear evidence that the CMA properly heard both
parties and considered the matter carefully in light of
evidence before it and found that the disciplinary
committee conducted hearing unfairly and contrary to
procedures and with apparent biasness and disregard of
request of the appellant to occasion adjournment which act
ultimately led to injustice towards the appellant.
law and in fact by failure to explain right of appeal to the
appellant, where appeal to this court is her constitutional
right.
Before the hearing commenced, with leave of the Court Mr. Kibamba was
allowed to withdraw the notice of cross appeal which he said was inadvertently
filed. Then, upon a dialogue with us on the dictates of section 57(1) of the Labour
Institutions Act which enjoins the Court to entertain only questions of law, Mr.
Akyoo abandoned the 3rd, 4th, 5th, 6th, 7th and 9th grounds of appeal which
happened to challenge the factual account at the CMA and which was
determined before the High Court.
Having heard the contending submissions from the learned counsel, the
issue for determination is whether the termination of the appellant from the
employment was for valid reasons and if the procedure was complied with. We
shall determine the 1st and 2nd grounds of appeal together considering that the
entire complaint of the appellant hinges on what transpired at the hearing by the
disciplinary committee.
The fairness of procedure in disciplinary matters is regulated by rule 13
of the Employment and Labour Relations (Code of Good Practice) Rules,
Government Notice No, 42 of 2007 (the Code of Good Practice.) Of relevance
in this particular matter, are sub rules (1), (2) and (3) of Rule 13 which stipulate
as follows:
13 (1) The Employer shall conduct an investigation to ascertain
whether there are grounds for a hearing to be held.
6
(2) Where a hearing is to be held, the employer shall notify the
employee of the allegations using a form and language that the
employee can reasonably understand.
(3) the employee shall be entitled to a reasonable time to prepare for
the hearing and to be assisted in the hearing by a trade union
representative or fellow employee. What constitutes a reasonable
time shall depend on the circumstances and the complexity of the
case, but it shall not normally be less than 48 hours.
We shall be guided by the stated position of the law. What transpired in the
matter under scrutiny and which is not disputed by the appellant is that, after the
respondent got a wind that the appellant's certificate was probably forged,
embarked on investigation with the NACTE officials and the appellant was
informed accordingly. Later, as the respondent was satisfied with the
investigation and having ascertained that there were sufficient grounds for a
hearing before the disciplinary committee, formally charged the respondent and
served her with the charge on 28/4/2014 contained in a letter with Reference
MOS/PF/I.882 tendered as exhibit B4 as hereunder:
Our Ref MOS/PF/1.882 Date

28.04.2014
Adela Damian Msanya Tanesco Ltcl
MOSHI.
YAH: TUHUMA DHIDI YAKO
Tafadhali rejea soma tajwa hapo Juu.
Kutokana na kazi ya kuhakiki vyeti vya shule na taaluma
kwa wafanyakazi lilyofanywa na Shirika mwaka 2014 na
kutokana na matakwa ya sheria ya kazi na mahusiano kazini
No. 6/2004 (The Employment and Labour Relations Act
2004), kanuni za ajira na mahusiano kazini (kanuni za
utendaji bora) 2007 pamoja na kanuni za mwenendo wa
maadili za TANESCO, unatuhumiwa kama ifuatavyo: -
TUHUMA
7
Kukosa uaminifu kwa kiasi kikubwa kwa mwajiri wako
kwa kuwasilisha cheti cha kughushi (cheti kisichokuwa
halali). Kitendo hicho ni ukiukwaji mkubwa wa kanuni ya
12(3) (a) ya kanuni za ajira na mahusiano kazini (kanuni
bora za utendaji kazi) 2007, pia ni kosa kwa mujibu wa
makosa ya jumla katika kipenge/e 9(5) ukurasa 74 wa
kanuni za ajira na mahusiano kazini (kanuni bora za
utendaji kazi) 2007 na ni kosa kwa mujibu wa kifungu 2.4
cha kanuni za mwenendo na maadili za TANESCO.
MAELEZO YA TUHUMA
Katika hali inayoonyesha kukosa uaminifu kumbukumbu
zinaonyesha mwaka 2012 wakati wa mchakato wa ajira
yako uliwasilisha cheti cha kidato cha nne (4) chenye
namba 5133/21 cha mwaka 1988 kinachoonyesha ulisoma
shule ya Sekondari ya Kirua Vunjo ambacho ni cheti
ghushi.
Kutokana na uchunguzi uliofanyika mwezi Juni, 2013 cheti
hicho ulichowasilisha kimeonekana ni cha kughushi. Hivyo
basi kitendo hicho ulichokifanya kinaenda kinyume na
kanuni ya 12(3) (a) ya kanuni za ajira na mahusiano kazini
(kanuni bora za utendaji kazi) 2007, pia ni kosa kwa mujibu
wa makosa ya Jumla katika kipengele 9(5) ukurasa 74 wa
kanuni za ajira na mahusiano kazini (kanuni bora za
utendaji) 2007 na ni kosa kwa mujibu wa kifungu 2.4 cha
kanuni za mwenendo na maadili TANESCO.
UTETEZI
Kwa kutumia sheria ya kazi No. 6/2004 (the employment
and labour relations Act 2004). Kanuni za ajira na
mahusiano kazini (Kanuni za utendaji bora) 2007 na kanuni
za uendeshaji wa maswala ya kinidhamu za TANESCO
(Disciplinary Operating Procedure) unatakiwa utoe
mae/ezo yako ikiwa kama utetezi dhidi ya tuhuma
inayokukabili.
Maelezo yako yamfikie aliyesaini barua hii ndani ya siku
saba za kazi baada ya kupokea barua hii.
8
Endapo maelezo yako hayatatufikia ndani ya muda
uliotajwa hatua nyingine zitaendelea bila taarifa yoyote za
ziada.
Wasalaam,
Kny: SHIR/KA LA UMEME TANZANIA
Mhandisi Martin Kasyanju
MENEJA WA MKOA - KILIMANJARO
MYK/PS/an
Nakata: Meneja Mwandamizi Rasilimaliwatu- Makao
Makuu (Dar) Nakata: Meneja Mwandamizi wa Kanda - (K)
Tanga
Nakata: Mwenyekiti wa TUICO - Tawi la Moshi.
In summary, the appellant was accused to have used a forged certificate to secure
employment which was dishonesty and breach of the disciplinary code of
TANESCO, the ERLA and the Code of Good Practice. Also, she was notified to
answer charges in writing within seven days. Two days later the appellant
obliged and gave her written answer to the charge contained in a letter dated
30/4/2014 as hereunder:
Adella Damian Msanya, Tanesco Limited,

Moshi.
30/04/2014
Meneja wa Mkoa, Tanesco Limited, Moshi.
YAH: TUHUMA DHIDI YANGU

Tafadhali rejea barua yako Kumb. Na. MOS/PF/1.882 ya
tarehe 28/04/2014. Katika barua hiyo nimetuhumiwa
kwamba nimeghushi cheti cha kidato cha nne (4) chenye
namba S133/21 cha mwaka wa 1988 kinachoonyesha kuwa
nilisoma katika shule ya sekondari ya Kirua Vunjo kinyume
na sheria ya kazi na kanuni zake na kutakiwa nitoe utetezi
9
wangu ndani ya muda wa siku saba (7) tu tangu nipate
barua hiyo dhidi ya tuhuma hiyo.
Utetezi wangu ni kwamba tuhuma hiyo siyo ya kweli kwa
sababu zifuatazo:
1. Cheti changu cha Kidato cha nne kilichonukuliwa
katika barua yako, namba 5133/21 cha shule ya sekondari
ya Kirua Vunjo ni halali na nimefuatilia huko shuleni
nilikosoma ili kupata uthibitisho kwamba nilisoma katlka
shule hiyo hadi kidato cha nne na nilitunukiwa cheti hicho
kutoka Baraza la Mitihani la Taifa kupitia katika shule hiyo
na hapa nimeambatanisha udhibitisho huo kutoka katika
shule hiyo kama inavyosomeka katika nakala ya rejista ya
wanafunzi wa mwaka huo waliosoma katika shule hiyo na
Jina langu lipo.;
2. Iwapo maelezo yaliyoandikwa cheti changu ni sahihi
usahihi au la mimi siwezi kujua kinatakiwa kiandikwe na
kwa namna gani, mimi nillpoona kimeandikwa Jina langu,
Jina la shule na kimetolewa na Baraza la Taifa la Mitihani
niliamini kiko vizuri, hivyo basi kama kuna kasoro yoyote
katika cheti changu anayepaswa kuwajibika ni shule yangu
na Baraza la Mitihani la Taifa kwa sababu wao ndio
wanaotakiwa kujua ni kitu gani kiandikwe kwenye cheti
hicho na walitakiwa wafanye kazi yao ya kuandika kwa
usahihi kwa mujibu wa sheria na taratibu zilizowekwa.
3. Aidha nimewasiliana na Baraza la Mitihani la Taifa
kuhusu tatizo hili ambapo nilitakiwa nitoe uthibitisho
kutoka shule ya sekondari Kirua Vunjo kuwa nilisoma
katika shule hiyo; nikaenda shuleni na nikapewa uthibitisho
ambao nakala imeambatanishwa katika barua hii nikatuma
kwa baraza na nikaambiwa watashughulikia tatizo hilo kwa
sababu uchunguzi wao umeonyesha kwamba Baraza ndilo
limesababisha tatizo hilo kwa sababu wakati wa kujaza
vyeti vya kuhitimu kidato cha nne walichanganya namba
senta za mitihani ambapo cheti changu kimendikwa namba
10
senta ya mtihani ya shule ya Sekondari Minaki badala ya ile
ya shule yangu kwa makosa ya walioandika;
4. Niliambiwa kwamba watawasiliana na mwaJiri wangu
Tanesco Iii kumjulisha hali hiyo na kumthibitishia kwamba
ni kweli kuwa nilisoma katika shule ya sekondari Kirua
Vunjo na nimefuzu kidato cha nne nilipewa cheti hicho
kihalali na Baraza hilo ijapo kimeandikwa kwa makosa
ambayo watayarekebisha kwa jinsi watakavyoona inafaa.
5. Kwa muda mfupi nilopewa nimejitahidi kwa nguvu
zangu zote kufuatilia jambo hilo katika ofisi zinazohusika
na nimebahatika kupata uthibitisho kwamba nimemaliza
kidato cha nne katika shule ya Kirua Vunjo na cheti
nilichotoa wakati wa kuajiriwa sikukighushi, nilitunukiwa
kihalali na mamlaka zilizowekwa kwa mujibu wa sheria na
kama kina kasoro yoyote wanapawa wao kuwajibika na
siyo mimi kuadhibiwa kwa makosa yao.
6. Naomba ieleweke wazi kuwa wakati nawasilisha cheti
changu nilichotunukiwa kihalali niliamini kwamba kipo
sahihi kabisa na hakina kasoro yoyote kwa vile kilitolewa
kihalali na mamlaka ya kisheria kufanya hivyo, sikukusudia
kutenda kosa nililotuhumiwa nalo wala kosa jingine iolote.
Nawasilisha na naomba tuhuma hizo zitupiliwe mbali na
nionekane sina kosa lolote na nitendewe haki.
Mtumishi wako mtiifu

Adella Damian Msanya
Nakata:
1. Meneja Mwandamizi Rasilimaliwatu - Makao Makuu
Dar
2. Meneja Mwandamizi wa Kanda - (K) Tanga
3. Mwenyekiti wa TUJCO - Tawi la Moshi.
In summary, apart from denying the charge, she maintained that the certificate
with Index No. 133/21 from Kirua Vunjo is valid and was obtained from the
NECTA through the said school. Also, she contended that, she should not be
11
punished for whatever errors or mistakes in the certificate in question and
instead, the respective authorities should be put to task.
About more than four months later, the appellant was notified to appear
before the disciplinary committee to have her case heard. According to exhibit
B6, the appellant was represented by one Daniel Ngwatu, a fellow employee and
member of TUICO at the place of work. This is cemented by the appellant's own
account who at page 25 of the record of appeal when cross-examined as to who
was Daniel Gwatu, she said that he was her representative.
At the hearing before the disciplinary committee, apart from pleading for
mercy, the appellant requested for more time to make a follow up on the
certificate. This was declined by the Committee which was finally satisfied that
the appellant had used a forged certificate to secure the employment. We were
perplexed having gathered what the appellant stated at paragraph 5 of her letter
in answer to the charge. She stated as follows:
Katika muda mfupi niliopewa nimejitahidi kwa nguvu
zangu zote kufuati!ia jambo hili katika ofisi zinazohusika
na nimebahatika kupata uthibitisho kwamba
nimemaliza kidato cha nne katika shule ya Kirua Vunjo
na cheti nilichotoa wakati wa kuajiriwa sikukighusi,
nilitunukiwa na mamlaka zilizowekwa kwa mujibu wa
sheria na kama kina kasoro yoyote wanapaswa wao
kuwajibika na siyo mimi kuadhibiwa kwa makosa yao.
The unofficial translation is rendered as follows: Given a short period, I have
followed up the matter and was lucky to get a confirmation that I completed form
four at Kirua Vunjo and the certificate I produced at the time of being employed
was not a forged one, as it was rendered by lawful authorities and if it has any
errors, the respective authorities should be made accountable instead of
punishing me for the fault which is not of my own making.
In the event of the appellant's own confirmation when answering the
charge that the certificate was valid, then what was the essence of requesting to
be given more time to follow up the certificate at NECTA? In our considered
view, apart from the appellant being all out to deploy delaying tactics, as
according to her written defence, she had already presented a valid certificate
and as such, there was nothing more to be followed. This tells that; indeed, the
certificate was forged as cemented by the evidence of Nelson Mefaly Mhanze
12
(DWl) the examination officer from NACTE who gave the details substantiating
the manner in which the certificate was forged and used by the appellant to
secure employment. In the premises, the appellant was not denied a right to be
heard as she was given ample time to follow up the matter before the hearing
was conducted. On this we agree with the learned Judge of the High Court who
at page 135 of the record of appeal said:
... a period of four and a half months had expired from
when the respondent was charged to the date of hearing
was conducted. She thus had ample time to follow up on
her certificate. The Disciplinary Committee there, had
exercised its duty and there was no denial of the right to
be heard on the part of the respondent. I so hold. J'F.
Therefore, in the event the appellant was not denied the right to be heard, the
case referred to by the appellant in Patrobert Ishengoma v. Kahama Mining
Corporation Ltd Barrick Tanzania Bulyanhulu), Minister for Labour
Employment and Youth Development and The Attorney General, Civil
Application No.172 of 2016 (unreported) is not applicable here because in the
said case, the Court addressed the effects on denial of a right to be heard which
is not the case here. Moreover, the appellant had a representative of TUICO at
the hearing before the disciplinary committee as opposed to what she claims.
In the circumstances, sub rules (1), (2) and (3) of Rule 13 of the Code of
Good Practice was complied with to the letter by the respondent. This renders
the 1st and 2nd grounds of appeal not merited. In view of what we have
endeavoured to discuss, we are satisfied that the termination of the appellant was
for valid reasons as it was established that the appellant had breached the
disciplinary code of TANESCO having used a forged certificate to secure
employment. Thus, we do not find cogent reasons to vary the decision of the
High Court. As a result, the appeal is not merited and it is hereby dismissed in
its entirety.
ASANTERABI MKONYI v. TANESCO

IN THE COURT OF APPEAL OF ANZANIA
13
AT DAR ES SALAAM
(NDIKA, KITUSI, and RUMANYIKA, JJ.A.)
(Appeal from the Judgment and Decree of the High Court of Tanzania, Labour
Division at Dar es Salaam, Nyerere. J, dated 7th December, 2018 in Revision
No. 485 of 2017)
Principles of Unfair Termination – Appellant employed on fixed term contract -
The contract was incessantly rolled over; that it was renewed by the respondent
after the expiry of each term - Whether the principles of unfair termination
applied to the appellant's employment with the respondent - Section 36 (a) (iii)
of the Employment and Labour Relations Act, Cap 360 and Rule 3 (3) and (4) of
Government Notice No. 42 of 2007.
Termination of Employment – Reasonable Expectation of Renewal-
Interpretation of reasonable expectation of renewal – Whether under the
circumstances there was reasonable expectation of renewal- Section 36 (a) (iii)
of the Employment and Labour Relations Act, Cap 360 and Rule 3 (3) and (4) of
Government Notice No. 42 of 2007.
The appellant was employed by the respondent on various monthly specific

task/fixed term contracts as Telephone Operator between 8th November 2012 and
June, 2015. He was charged with receiving calls from customers on emergency
cases requiring urgent technical support. It occurred sometime in May 2015 that
a complaint arose that he had mishandled a customer's call for emergency
technical support. In response, the respondent served him a letter dated 8th June,
2015 (Exhibit P2) demanding a show of cause within three days of receipt of the
letters to why disciplinary action should not be taken against him for
mishandling the call. The appellant duly furnished a reply dated 11th June, 2015
strenuously denying the accusation. The appellant was allegedly terminated from
employment forcing him to refer to the CMA a dispute on unfair termination.
The CMA found the termination to be unfair and ordered reinstatement of the
appellant to his previous position. The respondent was aggrieved and referred
the matter to the Labout Court which overturned the CMA award. Aggrieved,
the appellant preferred this appeal to the Court.
14
Held: (i) The principles of unfair termination do not apply to a fixed-term
contract (or even a special task contract) unless it is established that the employee
reasonably expected a renewal of the contract.
(ii) In terms of rule 3 (4) (a) and (b) of the Code, a fixed-term contract exists
where the agreement to work is for a fixed time or upon completion of a
predetermined task while a contract is for a permanent term where the agreement
to work is without reference to time or task.
(iii) When a contract has been rolled over on numerous occasions, the employee
can rightly expect a renewal after the effluxion of time of the last contract, all
things being equal.
Appeal dismissed
Cases referred to
(1) Mtambua Shamte & 64 Others v. Care Sanitation and Suppliers,
(2) Dierks v. University of South Africa (1999) 20 ILJ 1227
Statutory provisions referred to

(1) Rule 3 (3) and (4) of Employment and Labour Relations (Code of Good
Practice) Rules 2007, Government Notice No. 42 of 2007;
(2) Section 36 (a) (iii) of the Employment and Labour Relations Act, Cap
360;
(3) Section 40 (1) (a) of Employment and Labour Relations Act, Cap. 366
(R.E. 2019);
(4) Section 186 (b) of the Labour Relations Act 66 of 1995.
Appellant, in person
Messrs. Msefya and Urassa, Senior State Attorneys, for Respondent

7th March, 2022
NDIKA, J.A.: The appellant, Asanterabi Mkonyi, appeals against the judgment
of the High Court of Tanzania, Labour Division (Nyerere, J.) dated 7th
December, 2018 in Revision No. 485 of 2018 overturning the award dated 21st
15
September, 2017 made in his favour by the Commission for Mediation and
Arbitration (''the CMA'').
Briefly, the appellant was employed by the respondent, Tanzania Electric
Supply Company Limited, on various monthly specific task/fixed term contracts
(Exhibit Dl) as a Telephone Operator between 8th November, 2012 and June,
2015. He was attached to the Emergency Maintenance Unit at Tabata, Ilala, Dar
es Salaam, charged with receiving calls from customers on emergency cases
requiring urgent technical support. It occurred sometime in May 2015 that a
complaint arose that he had mishandled a customer's call for emergency
technical support. In response, the respondent served him a letter dated 8th June,
2015 (Exhibit P2) demanding a show of cause within three days of receipt of the
letter as to why disciplinary action should not be taken against him for
mishandling the call. The appellant duly furnished a reply dated 11th June, 2015
(Exhibit P3) strenuously denying the accusation.
There was a sharp disparity between the parties as to what was the
aftermath of the appellant's aforesaid submission of his statement. According to
the respondent's version put up by its sole witness, one Faika Mamuya, a Human
Resources Officer, the appellant ceased reporting for duties from 12th June, 2015,
a day after he submitted his statement and that the appellant's next move was
referring the matter to the CMA on 7th August, 2015. Denying that the
respondent terminated the appellant's contract, she said that no letter of
termination was ever issued. She was insistent that the appellant was not an
employee on permanent terms but on a specific task/fixed term contract.
On the other hand, the appellant, adducing evidence as PWl, averred that
after he submitted his statement, he was terminated by the respondent, a fate that
also befell his three former co-employees including Ibrahim Msafiri (PW2). He
bewailed that the termination was communicated orally by the respondent's
Human Resources Office and that no valid reason for the termination was
mentioned. On the part of PW2, his evidence materially supported the appellant's
claim.
In its award, the CMA took the view that the central issue in the matter
was whether the appellant was terminated from his employment. In resolving the
issue, the arbitrator took into account the respondent's evidence that the appellant
absconded from work but that no disciplinary process was initiated against him
for the alleged abscondment. He gave full credence to the appellant's evidence,
supported by his former co- employee (PW2), that he was dismissed from his
16
job. In the premises, the arbitrator upheld the appellant's claim, finding that his
termination was substantively and procedurally unfair. Accordingly, he ordered
the appellant's reinstatement in his employment in terms of section 40 (1) (a) of
thi: Employment and Labour Relations Act, Cap. 366 (R.E. 2019) ("the ELRA'').
Resenting the aforesaid outcome, the respondent applied to the High Court
for a revision of the award on three grounds, which we need not reproduce
herein. In its judgment, the High Court (Nyerere, J.) overruled the arbitrator's
finding that the appellant was on permanent terms and that he had to be subjected
to a disciplinary hearing on the accusation of abscondment. She found it certain
that the appellant had been employed on a specific task contract which
terminated at the end of the predetermined task or expiry of the fixed time. She
relied on a decision of that court in Mtambua Shamte & 64 Others v. Care
Sanitation and Suppliers, Revision No. 154 of 2010 (unreported) where it was
held:
Now, the principles of unfair termination under the Act do
not apply to specific tasks or fixed term contracts which
come to an end on the specified time or completion of a
specified task. Under the latter, such principles apply under
conditions specified under section 36 (a) (iii) read together
with Rule 4 (4) ... of the Code. Such conditions are said to
exist where 'an employee reasonably expects a renewal ....
‘Where such expectation exists, termination of employment
must be fair as defined under the whole of section 37 of the
Act.
Following the above decision, Nyerere, J. concluded, as shown at page 171 of
the record of appeal, thus:
It is the holding of this court that the respondent [Asanterabi
Mkonyi] was a Specific Task Employee. The employer was
not obliged to call for a disciplinary hearing after the
employee had absented himself from work. The fact that the
respondent was a specific task employee and he absconded
from work on his own free will, i.e., not terminated, he had
no right to claim fairness of termination as held by the Hon.
Arbitrator. Despite the fact that the respondent secured
several employment contracts on a specific task basis as
shown on record, this in itself did not automatically make
17
him a permanent employee, thus unfair termination benefits
do not apply to him.
Ultimately, the High Court vacated the CMA's award and ordered the respondent
to pay the appellant the outstanding remuneration for the days worked between
1st and 12th June, 2015, if any.
The appeal was initially predicated upon five grounds of complaint.
However, at the hearing of the appeal, it became clear, after the appellant had
abandoned the third and fourth grounds, that the focal point of the dispute
between the parties narrowed down to whether the principles of unfair
termination applied to the appellant's employment with the respondent.
We have examined the record of appeal and considered the contending
written submissions and oral arguments for and against the appeal. In resolving
the contentious issue at hand, we find it essential and logical to reproduce section
37 of the ELRA, which falls under Sub-Part E of that Act.
37.-(l) It shall be unlawful for an employer to terminate

the employment of an employee unfairly.
(2) A termination of employment by an employer is unfair
if the employer fails to prove-
(a) that the reason for the termination is valid;
(b) that the reason is a fair reason-
(c) related to the employee conduct, capacity
or compatibility; or
(d) based on the operational requirements of
the employer and
(e) that the employment was terminated in
accordance with a fair procedure.
The above provision creates the concept of unfair termination of employment by

defining "unfair termination of employment" as a termination where the
employer fails to prove that the termination was for a valid and fair reason and
that fair procedure was followed. However, section 36 of the ELRA limits the
application of this concept to "termination of employment" as defined
thereunder:
18
36. For purposes of this Sub-Part-
(a) "termination of employment" includes-
(i) a lawful termination of employment under the
common law;
(ii) a termination by an employee because the
employer made continued
employment intolerable for the employee;
(iii) a failure to renew a fixed term contract on the
same or similar terms if there was a
reasonable expectation of renewal;
(iv) a failure to allow an employee to resume work
after taking maternity leave granted under this
Ad or any agreed maternity leave; and
(v) a failure to re-employ an employee if the employer
has terminated the employment of a
number of employees for the same or similar reasons and
has offered to re- employ one or more of them;
[Emphasis added]
What is relevant to the present matter is section 36 (a) (iii) above to which we
have deliberately supplied emphasis. This provision sanctions the application of
the concept of unfair termination to employment on a fixed term contract in case
of failure to renew such a contract on the same or similar terms only if it is
established that there was a reasonable expectation of renewal. Certainly, where
such expectation does not exist the concept will not apply. It is noteworthy that
this limitation is restated by rule 3 (3) of Employment and Labour Relations
(Code of Good Practice) Rules, 2007, Government Notice No. 42 of 2007 ("the
Code"). In the same vein, rule 4 (4) of the Code, stipulates that:
(4) Subject to sub-rule (3), the failure to renew a fixed-term
contract in circumstances where the employee reasonably
expects a renewal of the contract may be considered to
be an unfair termination. [Emphasis added]
In view of the foregoing, it is our view that the High Court was correct in its
holding in this matter, premised on its earlier decision in Mtambua Shamte
(supra), that the principles of unfair termination do not apply to a fixed-term
19
contract (or even a special task contract) unless it is established that the employee
reasonably expected a renewal of the contract. It is instructive to note that in
terms of rule 3 (4) (a) and (b) of the Code, a fixed-term contract exists where the
agreement to work is for a fixed time or upon completion of a predetermined
task while a contract is for a permanent term where the agreement to work is
without reference to time or task - see also Mtambua Shamte (supra).
Coming to the phrase “reasonable expectation of renewal,"it is striking that the
ELRA does no define it. Thus, an employee's expectation of renewal would be
open to interpretation by courts depending on the circumstances of the case upon
an objective basis. In Dierks v. University of South Africa (1999) 20 ILJ 1227,
the Labour Court of the Republic of South Africa restated some of the factors
that had been considered in various cases in determining whether a reasonable
expectation of renewal has come into existence in terms of section 186 (b) of the
Labour Relations Act 66 of 1995. The Court observed, in Para. 133 of the
judgment, that:
[133] A number of criteria have been identified as
considerations which have influenced the findings of past
Judgments of the Industrial and Labour Appeal Courts.
These include an approach involving the evaluation of all
the surrounding circumstances, the significance or
otherwise of the contractual stipulation, agreements,
undertakings by the employer, or practice or custom in
regard to renewal or re-employment, the availability of the
post, the purpose of or reason for concluding the fixed term
contract, inconsistent conduct, failure to give reasonable
notice, and nature of the employer's business.
We think the above criteria would equally hold true in our jurisdiction.
As stated earlier, in arguing that he had a reasonable expectation of
renewal of his last contract, the appellant stressed that his employer had
continuously rolled over his monthly contract for close to three years between
8th November, 2012 and June, 2015. It occurs to us that when a contract has been
rolled over on numerous occasions, the employee can rightly expect a renewal
after the effluxion of time of the last contract, all things being equal. We are
cognizant that while in terms of rule 4 (2) of the Code a fixed-term contract
terminates automatically when the agreed period expires, in line with rule 4 (3)
of the Code the contract may be renewed by default if the employee continues
20
for work after the expiry of the agreed term and if circumstances warrant it.
Nevertheless, we think that in the instant case the appellant’s undisputed
abscondment from work was conduct which was inconsistent with the alleged
expectation. It was uncontroverted that the appellant absconded from work from
12th June, 2015 and then resurfaced after instituting his unfair termination claim
in the CMA on 7th August, 2015. In his absence, his last contract ran its course
and expired. Even then, according to DWl, as revealed at page 66 of the record
of appeal, the appellant was subsequently asked to resume service but he refused.
Thus, his claim that he had reasonable expectation of renewal of the last contract
is plainly implausible and unjustified. It was negated by his abscondment.
In conclusion, we find no merit in the appeal, which we hereby dismiss.
We make no order on costs as this matter, being a labour dispute, is not amenable
to awards of costs.
Appeal dismissed
BAHARI OILFIELD SERVICES FPZ LTD v. PETER WILSON

AT MTWARA
(LILA, LEVIRA, and KITUSI, JJ.A.)
(Appeal from the·Judgment and Decree of the High Court of Tanzania, Labour
Division, at Mtwara, Dyansobera, J., dated 20th August, 2019 in Labour
Revision No. 2 of 2018)
Jurisdiction - Whether an agreement between the parties has the effect of ousting
the jurisdiction of the CMA and that of the High Court in a labour dispute.
Court Practice – Whether courts are enjoined to determine matters even on
issues that were not raised at the commencement of the trial - Whether appellant
can in his oral submission address issues not raised in the memorandum of
appeal.
Statutory benefits – Repatriation costs – Whether payment of repatriation costs
is conditional upon the employee indicating the date of departure - Section 43 of
the Employment and Labour Relations Act, Cap 360.
21
The respondent went to the Commission for Mediation and Arbitration (CMA)
to complain against unfair termination of his employment by the appellant. After
hearing evidence from both sides, the CMA was satisfied that the respondent's
employment was unfairly terminated, so it proceeded to award him the reliefs
prayed. The appellant was aggrieved by that award and preferred a revision to
the High Court as per the law, presenting five grounds. The learned High Court
Judge found no merit in all grounds except one where he faulted the CMA for
awarding the respondent payment of USO 6,000 which had earlier been ruled to
be time barred. The appellant was still aggrieved by that decision, hence the
appeal to this Court.
Held: (i) Jurisdiction of courts is conferred by statute. In similar vein,
jurisdiction cannot be taken away but through the very instrument that conferred
it.
(ii) Courts are enjoined to determine matters even on issues that were not raised
at the commencement of trial, provided the parties testify on them.
(iii) The principle that requires parties to be bound by their pleadings extends to
grounds of appeal in an appeal. Appellant's written and/or oral submission must
be in consonance with the grounds of appeal.
(iv) There is nothing in section 43 of the Act that suggests that payment of
repatriation costs is conditional upon the employee indicating the date of
departure.
Appeal dismissed
Cases referred to
(1) The Commissioner General (TRA) v. Mohamed Al -Salim and Another,
Civil Appeal No. 80 of 2018;
(2) National Bank of Commerce Limited v. National Chicks Corporation
Limited and 4 Others, Civil Appeal No. 129 of 2015;
(3) Tanzania Revenue Authority v. Tango Transport Company Ltd, Civil
Appeal No. 84 of 2009;
(4) Stella Temu v. Tanzania Revenue Authority, [2005] T.L.R 178;
(5) Strabag International (GMBH) v. Adinani Sabuni, Civil Appeal No. 241
of 2018;
(6) Salhina Mfaume & 7 Others v. Tanzania Breweries Co. Ltd, Civil
22
(7) Severo Mutegeki and Another v. Mamlaka ya Maji safi na Usafi wa
Mazingira Mjini Dodoma (Duwasa), Civil Appeal No. 343 of 2019

(1) Section 43 of the Employment and Labour Relations Act, Cap 360.
(2) Section 44 (1) of the Employment and Labour Relations Act No. 6 of
2004
(3) Section 57 of the Labour Institutions Act [Cap. 300 R.E. 2019]
(4) Rule 106 of the Tanzania Court of Appeal Rules, 2019
Mr. Mgongolwa, for Appellant

Mr. Mushi, for Respondent

11th June, 2021.
KITUSI J.A.: The respondent went to the Commission for Mediation and
Arbitration (CMA) to complain against unfair termination of his employment by
the appellant. He sought the following reliefs: One, payment of basic salary for
the remaining period of the contract (4 months) at USD 10,000 per month; two,
payment of USD 120,000 being salaries for 12 months as compensation for
unfair termination; three, payment of USD 72,000 being refund of deducted
salaries; four, payment of subsistence allowance at the rate of USD 150 per day
from the date of unfair termination to the date of final determination of the matter
and; five, payment of repatriation costs.
After hearing evidence from both sides, the CMA was satisfied that the
respondent's employment was unfairly terminated, so it proceeded to award the
following reliefs to him; one, a total of USD 40,000 being salary for the
remaining period of four months, subsistence allowance at the rate of USD 150
per day from the date of termination to the date of either determination of the
matter or of honouring the award, which came to 204 days x 150, equals to USD
30,600 and; lastly deducted salary of USD 3,000 per month for two months,
which came to USO 6,000.
At the trial, the respondent testified in proof of his claim by stating that he
started working for the appellant on 15th January 2015 under an employment
23
contract which specified that the total monthly pay he was going to be receiving
would be USD 10,000. He further stated that from October 2015, the appellant
began to pay him USD 3,000 less on the ground that there was no enough
income. Later in July 2017, the respondent received a letter of termination of
employment which cited curtailed business operation as the reason.
The respondent disputed the alleged reason for his termination because he
said, he had worked out business ventures that were bringing income to the
appellant and that in any event, the appellant employed another person who took
over his position. He therefore prayed for payment of salary for the remaining
period of the contract and compensation for unfair termination. During cross-
examination the respondent denied being a party to any negotiations through
email, let alone accepting, any proposed rates for reduced salary.
Mr. Ashock Hiran, the only witness for the appellant testified that he was
the superintendent and in charge of the office of the appellant and custodian of
office records. He cited the reason for termination of the respondent's
employment as being Government's policy that affected operations of the Oil
and Gas business. He said that according to records, the respondent’s monthly
pay was USO 10,000 and that there were only bank statements to prove the
revised remuneration. Earlier, an attempt by Mr. Hiran to tender an email
correspondence establishing the existence of an agreement for revised
remuneration failed because the CMA ruled the document to be inadmissible for
it being a copy.
The appellant was aggrieved by that award and preferred a revision to the
High Court as per the law, presenting five grounds, paraphrased as follows:
6.1 The Arbitrator erred in concluding that the termination was
unfair simply because it wrongly believed that the person who
took up the Job of “Supply Manager" had replaced the
appellant's position as General Manager.
6.2 The Arbitrator erred in awarding the respondent more than
what he had asked for;
6.3 The Arbitrator erred in granting subsistence allowance by
disregarding the appellant's letter dated 28th September 2017
which sought the respondent to confirm the date of his
departure to the United Kingdom.
24
6.4 The Arbitrator erred in not admitting email correspondence
dated 27th August 2015 in which the respondent accepted
salary revision.
6.5 The Arbitrator erred in granting four months' pay and
disregarding the terms of the contract that provided no such
relief.
The learned High Court Judge found no merit in all grounds except in ground
6.2 where he faulted the CMA for awarding the respondent payment of USO
6,000 which had earlier been ruled to be time barred. But he found merit in point
6.1 regarding unfair termination because, he observed, Mr. Hiran conceded that
the appellant employed another person to take over the respondent's position,
certainly showing that the alleged financial constraints leading to the
termination, was but, a mere excuse.
That decision of the High Court has stirred animated arguments, as we
shall see.
On point 6.3 which attacked the award of subsistence allowance, the
learned Judge observed that on 26 January 2018 the CMA recorded the
following:
Both parties have agreed that the claim of repatriation is not
in dispute as the respondent will pay the repatriation cost as
per law.
The learned Judge resolved the issue under point 6.3 by holding that the
appellant having undertaken to pay repatriation cost as per law, it was estopped
from arguing otherwise. He accordingly, dismissed the grievance under point
6.3.
In disposing the complaint under point 6.4 the Judge stated that it had been
overtaken by the event in view of the position taken in addressing point 6.3.
Secondly, he observed that the document referred to in that complaint, was
inadmissible for it being a copy therefore it could not form a basis for deciding
the issue in favour of the appellant.
Addressing the last point, that is point 6.5, the learned Judge referred to
section 44 (1) of the Employment and Labour Relations Act No. 6 of 2004
hereafter, the Act, which provides for an employee's entitlements upon
termination. He went on to say that payment of salary for the remaining period
25
of contract and repatriation allowance are among the statutory entitlements
which override any contractual terms. He dismissed the complaint under point
6.5.
The appellant was still aggrieved by that decision and has demonstrated
that by presenting four grounds of appeal to the Court. At the hearing, Mr. Alex
Mgongolwa, learned advocate representing the appellant, dropped the second
ground of appeal. However, because of the nature of our deliberations in this
matter, we shall reproduce all grounds of appeal, including ground 2.
1. The Honourable. Judge erred in law and fact by granting
subsistence allowance while disregarding the Appellant letter
dated 28th September, 2017 seeking confirmation from the
Respondent on the date of departure to New Castle, United
Kingdom.
2. The Honourable Judge erred in law and fact by not considering
the admission of an email correspondence dated 27th August,
2015 on the acceptance of salary revision by the appellant which
was legally admissible.
3. The Honourable Judge erred in law and fact by granting four
months/ pay while disregarding 'The Termination of Contracrt’
terms as agreed in the Contract of Employment
4. That the Honourable Judge erred in law and fact by arriving at a
flawed decision as he misunderstood the Tanzanian appointed as
“Supply Base Manager” treating it at par with the General
Manager position of the Respondent and misconstrued grounds
for termination.
While Mr. Mgongoiwa submitted in support of the appellant’s case, Mr. Salim
Mushi, learned advocate, appeared for the respondent and argued in opposition.
After abandoning the second ground of appeal, the learned counsel for the
appellant decided to argue ground one separately and grounds three and four
jointly. Both advocates had earlier flied written submissions which they prayed
to adopt.
That is about all, from the learned counsel for the parties. At the very
outset we think we have two preliminary matters to deal with in this appeal. The
first is the issue of jurisdiction. We are aware that jurisdiction of courts is
conferred by statute. See some of our decisions, like The Commissioner General
26
(TRA) v. Mohamed Al -Salim and Another, Civil Appeal No. 80 of 2018 and;
National Bank of Commerce Limited v. National Chicks Corporation Limited
and 4 Others, Civil Appeal No. 129 of 2015 (both unreported). In similar vein,
we know that ouster of jurisdiction cannot be inferred but must be express. Here
we wish to reproduce a paragraph from Halsbury's Laws of England, Vol 10 at
paragraph 314, which the Court reproduced, in the case of Tanzania Revenue
Authority v. Tango Transport Company Ltd, Civil Appeal No. 84 of 2009
(unreported). The paragraph defines jurisdiction as:
the authority which Court has to decide matters that are
litigated before it or to take cognizance of matters prescribed
in a formal way for its decision. The limits of this authority
are imposed by the statute; charter or commission under
which the court is constituted, and may be extended or
restrained by similar means. A limitation may be either as
to the kind and nature of the claim, or as to the area which
jurisdiction extended, or it may partake of both these
characteristics. [emphasis ours].
So, the issue for our immediate determination is whether what was recorded on
26th January 2018 had the effect of ousting the jurisdiction of the CMA and that
of the High Court as contended by Mr. Mgongolwa. In the proceedings of that
date, it is on record that the parties were not at issue on the repatriation because
the appellant had undertaken to pay for the same. As we shall see later, the
learned Judge took that undertaking as no more than a duty on the appellant to
be discharged. With respect, we cannot let our imaginations run that far as to
suggest that the record referred to above amounted to barring the CMA and the
High Court from deciding on the issue. Jurisdiction cannot be taken away but
through the very instrument that conferred it, as per the cited case above.
If assuming, Mr. Mgongolwa's intention was to argue that the court could
not decide on issues that were not before it, that does not mean that the court had
no jurisdiction on the issues if they had been properly raised. We are aware that
courts are enjoined to determine matters even on issues that were not raised at
the commencement of trial, provided the parties testify on them. In the case of
Stella Temu v. Tanzania Revenue Authority, [2005] T.L.R 178 the Court held at
page 186:
Surely the learned judge could not pretend that the question of
defamation was not before him just because no issue was
27
framed on defamation...a court must decide a matter which it
has allowed to be argued before it even if the matter is not
contained in the pleadings.
The Court took a similar position in other cases such as Strabag International
(GMBH) v. Adinani Sabuni, Civil Appeal No. 241 of 2018 and Salhina Mfaume
& 7 Others v. Tanzania Breweries Co. Ltd, Civil Appeal No. 111 of 2017 (both
unreported).
In this case, the CMA had allowed the parties to testify on repatriation and
there was evidence on it from both parties although scanty. The appellant's
witness was asked a question at page 159 of the record if he was aware of any
terminal benefits that had been paid to the respondent, and he said he was not.
Then on the respondent's side, he testified at page 164 of the record that he was
praying to be paid subsistence allowance, salary for the remaining period of the
contract and compensation for unfair termination. These testimonies were
received by the CMA subsequent to 26th January 2018, the date on which, the
parties had allegedly agreed not to pursue that course. In fine, it is our finding
that the parties were still at issue on the subsistence allowance which, as rightly
submitted by Mr. Mgongoiwa himself, is intertwined with payment of
repatriation costs. The High Court could not have turned a blind eye to that issue
by pretending it was not there for determination. The issue of jurisdiction does
not arise in this case.
The second preliminary matter is whether the appellant who presents
written submissions in terms of Rule 106 of the Tanzania Court of Appeal Rules,
2019 (the Rules) may, in the oral submissions raise issues that are different from
the grounds of appeal. On this, Mr. Mushi submitted that parties are bound by
their grounds of appeal and criticized Mr. Mgongolwa for smuggling into the
case arguments that were not in harmony with the grounds of appeal. On the
other hand, Mr. Mgongolwa submitted that the issue he raised was jurisdictional
which could be raised at any time.
It is true that issues of jurisdiction may be raised at any time, but we have
just concluded above that the argument by the appellant's learned counsel did
not raise a jurisdictional issue. Therefore, we still have to address the question,
whether the appellant can address issues not raised in the memorandum of
appeal. Our starting point is Rule 93 (1) of the Rules which provides:
28
193. - (1) A memorandum of appeal shall set forth concisely
and under distinct heads, without argument or narrative, the
grounds of objection to the decision appealed against,
specifying the points which are alleged to have been wrongly
decided, and the nature of the order which it is proposed to ask
the Court to make.
Then Rule 106 (l) and 106 (10) (a) provide:
106. (1) An appellant or applicant shall, within sixty days
after lodging the record of appeal or filing the notice of
motion, file in the appropriate registry written submissions in
support of the appeal or application as the case may be.
106. – (10) At the hearing, the parties or their advocates shall
appear and, where:
(a) Written submissions have been filed, present oral
arguments to clarify their written submissions; or
The meaning of the above quoted provisions is plain in our view, that for one to
access this Court on appeal he must present specific grounds of objection to the
decision appealed against. Thereafter he may, under Rule 106 (1) of the Rules,
file written submission in support of the appeal and any oral submissions at the
hearing shall aim at clarifying the written submission. There is an obvious
rationale for such requirements. One, this Court is not a court of first instance so
the grounds for faulting a decision of a lower court must be specific lest we cross
the line. Two, the other party has the right to know beforehand the nature of the
grounds upon which determination of the appeal may be based. That is an aspect
of fair hearing, so as not to take the other party by surprise.
We therefore agree with Mr. Mushi that the principle that requires parties
to be bound by their pleadings extends to grounds of appeal in an appeal. On that
basis our conclusion is that an appellant's written and/or oral submission must
be in consonance with the grounds of appeal.
We now go back to the grounds of appeal. We shall first take note that in
terms of section 57 of 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.
29
We shall begin with ground one. The complaint here is that the High Court
erred in granting subsistence allowance to the respondent in total disregard of
the respondent's failure to reply to the appellant's letter dated 28th September,
2017. The relevant part of the appellant's written submissions runs thus at page
5:
Repatriation is a right of the employee which has to be
exercised by the employer, but the same is preceded with
obligation to show cooperation in ensuring a successful
departure of the employee to his place of recruitment. The
employee (Respondent) had a duty to reply the letter which
required confirmation so as enable the employer to proceed
with the repatriation finalization.
Diametrically in his oral submissions, supposedly to clarify on the written
submissions, counsel for the appellant raised the issue of jurisdiction. We have
already dealt with that argument and ruled against the appellant. If we decide to
go by counsel's oral submissions, then we cannot help concluding that the
submissions did not address the grounds of appeal. But since counsel adopted
their written submissions, and they are part of the record, we cannot ignore them.
In fairness therefore, we shall proceed to consider the written argument to
resolve the question, first, whether payment of repatriation costs under section
43 (1) (c) of the Act is conditional upon the employee confirming the date of his
departure.
In the written submissions, counsel for the respondent argued two points
in the alternative. First, he submitted that ground 1 raises an evidential issue
contrary to section 57 of Cap 300. He also cited the case of Severo Mutegeki and
Another v. Mamlaka ya Maji safi na Usafi wa Mazingira Mjini Dodoma
(Duwasa), Civil Appeal No. 343 of 2019 (unreported). In the alternative, he
submitted that even if the CMA was supposed to take the appellant's letter into
account, the same could not be done because the letter was held to be
inadmissible for being a copy.
Our determination of the first ground of appeal will be threefold. First,
we agree with the respondent that, the ground offends S. 57 of Cap. 300 for
raising factual issues. Section 57 of Cap 300 provides:
30
57. Any party to the proceedings in the Labour Court may
appeal against the decision of that Court to the Court of Appeal
of Tanzania on a point of law only.
Secondly, there is nothing in section 43 of the Act that suggests that payment of
repatriation costs is conditional upon the employee indicating the date of
departure. At the CMA the appellant did not demonstrate that there were efforts
to repatriate the respondent, because all that the appellant’s witness stated, was
that he was not aware of any terminal benefits having been paid to the
respondent.
Lastly, the said letter, though not relevant in our view on the ground that
there was no precondition for repatriation, it was not admitted in evidence. For
those reasons, this ground has no merit, it is dismissed.
We turn to ground 3 and 4 which, during the hearing, Mr. Mgongolwa
sought to argue together. However, in his oral submission, the learned counsel
only argued ground 3 related to payment of four months salary against the agreed
terms of the contract. First, the learned counsel mistook this complaint for that
of deduction of salaries, which was not an issue in this appeal. Later, in rejoinder
he submitted that the respondent was not entitled to it. If anything, he submitted,
payment should have been at the rate of USD 2000 not USD 10,000.
In the written submissions the appellant1s position was that clause 17 of
the contract provided for payment of two months salaries in lieu of notice and
no more. On that basis, the Judge’s order granting the respondent payment of
salaries for the remaining period was erroneous, it was submitted.
In respect of ground 4, the appellant submitted in writing that the High
Court's conclusion that the termination was unfair because the respondents
position was taken by somebody else is wrong because the two positions are not
similar. The same argument had earlier been made before the High Court.
In response to ground 3, the respondent's counsel submitted that the point
is factual and therefore untenable, but even then, he further submitted, no term
of contract can override an Act of Parliament. As regards the 4th ground of
appeal, he submitted that it also offends section 57 of Cap. 300.
We shall determine ground 4 first, by first appreciating that in his
judgment the learned Judge's conclusion that the termination was unfair was
based on Mr. Hiran's admission at page 158 that: - “Aziza took over Peter's
31
position as General Manager.” This ground calls upon us to re-evaluate that
piece of evidence which, mindful of section 57 of Cap. 300, we cannot do. On
that basis, ground 4 has no merit, we accordingly dismiss it.
We turn to ground 3, whether payment of salaries for the remaining period
of the contract was justified while the contract provided for no such thing. Again,
we cannot fault the learned Judge's conclusion that a term of contract cannot
invalidate law. Having held the termination to have been unfair, compensation
for breach of contract was a natural consequence. This ground is also dismissed
for want of merit.
Mr. Mgongolwa submitted that if payment of salaries for the remaining
period of the contract had to be ordered, it should have been at the rate of USD
2000, instead of USO 10,000. With respect, the appellant cannot be heard on this
having abandoned ground 2 of appeal. Only in ground 2 of appeal would the
issue of salary revision be resolved one way or the other. However, as the matters
now stand, the decision of the High Court that there was no salary revision
remains undisturbed. For clarity, this is the reason we earlier reproduced ground
2 of appeal along with others.
Lastly, we agree with Mr. Mgongolwa on his written submissions at page
6 regarding the connection between repatriation and payment of subsistence
allowance. After quoting section 43 of the Act, the submission goes thus:
It is clear from the above quoted provision that subsistence
allowance is only granted upon failure of the employer to
timely repatriate the employee to their place of recruitment.
However, we shall leave the matter there because, having demonstrated that the
grounds of appeal lack merits, we need not say more.
For the foregoing reasons, this appeal is accordingly dismissed in its
entirety, and since this appeal originates from a labour matter, we make no
order for costs.
Appeal dismissed
BALTON TANZANIA LIMITED v. VICTORIA GALINOMA and

32
ASUBISYE MALOLO MWAKATOBE
AT DAR ES SALAAM
(Appeal from the decision of the High Court of Tanzania, Labour Division, at
Dar es Salaam, Wambura. J., dated 14th June, 2019 in Revision No. 287 of
2018)
Reliefs – Termination found unfair- Whether the court can grant reliefs not
prayed in the CMA's Form No. 1 but proved by the employee.
On 30/06/2017 the respondents filed in the Commission for Mediation and
Arbitration at Dar es Salaam (the CMA) a dispute on unfair termination
following their termination by the appellant employer. On 4/5/2018, the CMA
found that the termination by retrenchment contravened section 37 of the
Employment and Labour Relations Act, Cap.366 R.E. 2019 and ordered re-
engagement of the respondents. On revision, the High Court upheld the award.
The appellant was unhappy with the High Court's decision, hence the instant
appeal.
Held: (i) It does not need overemphasis to hold that when giving awards, the
courts have discretion under section 40 (1) (c) of the ELRA. An arbitrator or the
High Court, as the case may be, has the discretion to award an unfairly
terminated employee any relief including those ones not pleaded in the referral
CMA Form No.1.
Appeal partly allowed
Cases referred to
(1) Melita Naikiminjal & Loishilaari v. Sailevo Loibanguti [1998] T.L.R. 12
(2) Said Mohamed Nzegere v. Aarsleef Ban International, Labour Revision
No. 17 of 2019
(3) Magnus K. Laurean v. Tanzania Brewaries Limited, Civil Appeal No. 25
of 2018
33
(1) Section 37 of the Employment and Labour Relations Act, Cap.366 R.E.
2019
(2) Section 40 (1) (c) of the Employment and Labour Relations Act, Cap.366
R.E. 2019
Mr. Lupogo, for Appelant

Mr. Mbedule, for Respondent

22nd April 2022
RUMANYIKA, J.A.: All began on 30/06/2017 in the Commission for

Mediation and Arbitration of Dar es Salaam at Dar es Salaam (the CMA)
following the termination by Balton Tanzania Ltd (the appellant) of the
employment of Victoria Galinoma and Asubisye Mololo Mwakatobe, the 1st and
2nd respondents respectively. They worked with the appellant in the positions of
a Credit Controller and Technical Sales Manager for Communication
respectively.
On 4/5/2018, the CMA found that the termination by retrenchment
contravened section 37 of the Employment and Labour Relations Act, [Cap.366
R.E. 2019] (the ELRA) for being substantively and procedurally unfair. The
CMA ordered re-engagement of the respondents. On revision, the High Court
(Wambura, J.) upheld the award on 14/06/2019. Additionally, pursuant to
section 40 (1) (a) of the ELRA the High Court awarded them a good number of
other compensations. The appellant was unhappy with the High Court's decision,
hence the instant appeal.
The appellant has lodged six grounds. However, the grounds revolve
around three points which we think are sufficient to dispose of the appeal. The
points are: (i) The High Court improperly evaluated the evidence on record on
the reason and procedure for termination of the respondent's employment (ii)
34
The High Court's decision was against the weight of the evidence on the record
and (iii) the High Court's compensatory order was not justified.
At the hearing, Messrs. Herman Majani Lupogo and Sosten Mbedule,
learned counsel appeared for the appellant and the respondents respectively. To
start with, Mr. Lupogo dropped ground number (i) but adopted the appellant's
written submissions.
Having heard the parties and considered their respective submissions and
the evidence on record, the central issue before us is no longer whether, be it by
retrenchment or in any other form the respondent's termination was fair, but
whether the compensation ordered by the High Court was justified. We were
impressed by Mr. Mbedule's submissions that the appellant only disputed the
reliefs granted by High Court and therefore the parties are estopped from
introducing new matters at the appeal stage, given the appellant's previous
concession. Again, he submitted that at the time, also representing the appellant,
Mr. Lupogo at page 277 of the record of appeal appreciates the CMA's
discretion. The record reads thus:
... As for the 1st issue we believe the arbitrator had used the
arbitral powers provided for under s. 40(1) (b) of the ELRA
as well as Rule 32(1)(2) of Labor Institutions Act
(Mediation and Arbitration) Guidelines, No. 67 of 2017
which provide for reliefs for unfair termination.
Under s. 40(1) of the ELRA the Arbitrator may order re-
engagement and Rule 32(1) of the Labor Court Rules, 2007
states the same. It is the discretion of the Arbitrator to grant
such remedy...
It is very unfortunate that contrary to the rule in the case of Melita Naikiminjal
& Loishilaari v. Sailevo Loibanguti [1998] T.L.R. 12 as reflected in grounds 1,
2 and 4 of the appeal, which bars new matters at an appeal stage, the claim of
unfair termination of the respondents was before us newly introduced and an
afterthought. These grounds need no more consideration by us. They are
dismissed.
As said before, Mr. Lupogo faults the High Court Judge for ordering re-
engagement and compensation simultaneously. With respect, we wish, at this
35
point to address Mr. Lupogo's proposition as being incorrect. Actually,
observing the provisions of section 40 (1) (a) – (c) of the ELRA, the High Court
Judge ordered re-engagement and compensation as alternatives. The order reads
as follows:
2 Applicants (the present respondents) to be awarded 12
month's salary (sic) as compensation instead of re-
engagement at the discretion of the employer...
From the above immediate quotation therefore, the issue of the respondents
getting double payment should not have even been raised.
It does not need overemphasis to hold that when giving awards, the courts
have discretion under section 40 (1) (c) of the ELRA. On that one there is a long
list of authorities including Pangea Minerals Ltd v. Gwandu Majali, Civil
Appeal No. 504 of 2020 (unreported) cited by Mr. Mbedule. The question
whether or not the relief granted by the Court was prayed in the CMA's Form
No. 1 and proved by the employer as also complained of by Mr. Lupogo's, on
different occasions we held that the courts are not precluded from granting such
reliefs. We read the decision of the High Court, Labour Division in Said
Mohamed Nzegere v. Aarsleef Ban International, Labour Revision No. 17 of
2019 which held that an arbitrator or the High Court, as the case may be, has the
discretion to award an unfairly terminated employee any relief including those
ones not pleaded in the referral CMA Form No.1, but certainly that decision is
not binding on us. However, as we held in an unreported case of Magnus K.
Laurean v. Tanzania Brewaries Limited, Civil Appeal No. 25 of 2018, whenever
the need arises, once established and proved, some non-discretionary statutory
entitlements such as terminal benefits and a certificate of service are grantable,
even if had not been claimed in the said referral form. That is pursuant to section
44 (1) and (2) of the ELRA.
In the upshot, the appeal is allowed to the extent stated above.
Accordingly, on account of them having been not claimed by the respondents,
we set aside the orders for the additional three months' remuneration and 1% of
all works also ordered by the High Court in favour of the second respondent.
Since the appeal arises from a labour dispute, we make no order for costs.
36
BARCLAYS BANK TANZANIA v. PHYLISIAH HUSSEIN
MCHENI
AT DAR ES SALAAM
(LILA, KWARIKO, and KITUSI, JJ.A.)
(Appeal from the order of the High Court of Tanzania, Labour Division, at Dar
es Salaam, Wambura, J, dated 28th November, 2012 in Complaint No. 31 of
2010)
Limitation period – Rules of statutory interpretation - Fate of a time barred
labour matter - Whether it is dismissal or striking it out – Sections 3, 43 and 46
of the Law of Limitation Act [Cap 89 R.E 2002] and Rules 3 and 10 of the Labour
Institutions (Mediation and Arbitration) Rules, 2007, G.N. No. 64 of 2007.
The respondent was employed by the appellant in May, 2007 and that
employment was terminated in April, 2010. She referred a complaint to the High
Court, Labour Division, on 27th October, 2010. The appellant filed a response to
the statement of complaint and raised two points of preliminary objection one of
which was that the matter was time barred. The Court upheld the preliminary
objection and struck out the complaint with a right to refile if the respondent was
still interested to pursue the matter. The appellant was aggrieved by this order,
hence this appeal praying that the matter ought to have been dismissed not struck
out.
Held: (i) It would be inequitable if one party to an employment contract is
allowed to disregard time in instituting a complaint against the other party.
(ii) It is a principle of statutory interpretation that one provision of a statute
cannot defeat another provision of the same statute. In line with that, it is settled
that section 46 of the Act will defeat section 3 (1) of the Act if a time - barred
matter will be struck out with leave to refile, instead of being dismissed.
(iii) It is a rule of statutory interpretation that if the legislature had intended time
- barred employment matters to be struck out, it would have expressly stated so.
While on the same principle, there is also another rule of statutory interpretation,
that in enacting the Labour Institutions Act, No. 6 of 2004 and the Employment
and Labour Relations Act, 2004, the legislature must be assumed to have been
37
aware of the existence of the Law of Limitation Act [Cap 89 R.E 2002] which
had been in place since 1971.
Appeal allowed
Cases referred to
(1) Ngasa Kapuli @ Sengerema v. Republic, Criminal Appeal No. 160 "B"
of 2014;
(2) Barnabas Msabi Nyamonge v. Assistant Registrar of Titles and Shufaa
Jambo Awadhi, Civil Appeal No. 176 of 2018;
(3) The Director of Public Prosecutions v. Li Ling Ling, Criminal Appeal No.
508 of 2015;
(4) Dr. Noordin Jella v. Mzumbe University, Complaint No. 47 of 2008;
(5) Felician Rutwaza v. World Vision Tanzania, Civil Appeal No. 213 of
2019;
(6) John Cornel v. A. Grevo (T) Ltd, Civil Case No. 70 of 1998;
(7) Hezron M. Nyachiya v. Tanzania Union of Industrial and Commercial
Workers and Another, Civil Appeal No. 79 of 2001;

(1) Sections 3 of the Law of Limitation Act [Cap 89 R.E 2002];
(2) Section 43 of the Law of Limitation Act [Cap 89 R.E 2002];
(3) Section 46 of the Law of Limitation Act [Cap 89 R.E 2002];
(4) Rules 3 of the Labour Institutions (Mediation and Arbitration) Rules,
2007, G.N. No. 64 of 2007; and
(5) Rules 10 of the Labour Institutions (Mediation and Arbitration) Rules,
2007, G.N. No. 64 of 2007;
(6) Rule 55 (1) of the Labour Court Rules/ 2007 G.N. No. 106 of 2007;
(7) Section 55 (1) of the Labour Institutions Act, [Cap 300 R.E 2019].
Messrs. Kamala, for Appellant

Mr. Mfalla, for Respondent
38
17th May, 2021
KITUSI, J.A.: The parties to this appeal had an employer-employee relationship

that went sour. The appellant terminated the respondent's employment under
circumstances that were considered by the respondent to be unfair. She therefore
instituted legal proceedings to challenge the termination but, in this appeal, we
are not called upon to decide on the issue of the alleged unfairness of the
termination. Rather, we are confronted with a narrow but unfamiliar point of law
to determine. We shall briefly trace its essence first.
The respondent was employed by the appellant in May, 2007 and that
employment was terminated in April, 2010 for reasons that are not relevant
presently as we have said. She went to the High Court, Labour Division, to seek
remedy by filing a complaint. That was on 27th October, 2010. The appellant
filed a response to the statement of complaint, the equivalent of what under the
Civil Procedure Code [Cap 33 R.E 2002] (the CPC) would be called the written
statement of defence. In that response, the appellant raised two points of
preliminary objection, but we are interested with only one, for the purpose of
this appeal. That point of preliminary objection runs as follows:
(a) On the first day of hearing or any day when the matter
stays adjourned the Respondent will raise a preliminary
objection on the point of law that the complaint is time
barred.
The essence of this appeal is the proceedings and resultant order of the High
Court when the matter was eventually called before it for hearing on
28/11/2012. We shall reproduce the relevant part.
Mr. Kamara: The matter is for hearing of a preliminary
objection and I am ready to proceed
Mr. Anthony: I concede to the first preliminary objection
raised and thus pray that I be given leave to refile the same
after it has been struck out
Mr. Kamara: if he concedes then the effect is to dismiss the
same as was held in case of Dr. MJELLA Vs MZUMBE
UNIVERSITY Complaint No. 47/2008
Mr. Anthony: I beg to differ as the effect is not to dismiss
the matter. The prayer was to restore the matter to CMA.
39
Matters filed out of time are usually struck out not
dismissed. My intention is to save the time of the court and
parties. I thus pray be allowed to file the same at CMA
Court: As the applicants concede to the preliminary
objection raised the application is accordingly struck
out. Applicants are at liberty to refile the same if they
still wish to pursue the matter. (Emphasis supplied).
The appellants have filed one ground of appeal to challenge that decision and
that is the reason for our confined interest on the matter. The ground of appeal
reads:
(a) The honourable trial Judge erred in law by holding (sic)
to struck out the complaint with liberty to refile instead of
dismissing the same after deciding that it was time barred.
Before us, Mr. Paschal Kamala, learned advocate, represented the appellant
whereas Mr. Mashaka Mfalla, also learned advocate, appeared for the
respondent. Mr. Kamala had earlier filed written submissions which he adopted
when it was time for him to address us. Mr. Mfalla had not filed any written
submission but he addressed us orally as per the Tanzania Court of Appeal Rules,
2009 (the Rules). Counsel have different views on the fate of a time barred
matter; whether it is dismissal, as argued by Mr. Kamala or, striking it out, as
maintained by Mr. Mfalla. That is the narrow scope of our task in this appeal.
We appreciate counsel's industry that has enriched our discussion in this
case. We will be making reference to the cases cited to us as and when
deliberating on a relevant point, although only a few of those cases may suffice.
However, we shall begin by making reference to some rules of statutory
interpretation because that seems to be our duty in this case. We have dealt with
that area in many of our previous decisions, so we shall simply reproduce what
was stated in Ngasa Kapuli @ Sengerema v. Republic, Criminal Appeal No. 160
"B" of 2014 (unreported):
The first general rule, is that, if the words of statute are
clear, the duty of the court is to give effect to their natural
ordinary meaning, unless it finds that to do so, would lead
to hardship, serious consequences, inconvenience, injustice,
absurdity or anomaly. If that is so, then preference should
40
be given to that construction which would avoid such
results. The second principle is that a statute must be read
as a whole. One provision of the section should be
construed with reference to the other provisions in the Act
so as to make consistent enactment of the whole statute. In
that way any inconsistency or repugnancy either in the
section or between a section and other parts of a statute,
would be avoided. Here the duty of the court is to harmonize
the provisions of the same Act as much as possible, so as to
avoid a head on collision between two sections of the same
Act. The last, third principle is the rule of construction in
favor of presumption of constitutionality.
See also Barnabas Msabi Nyamonge v. Assistant Registrar of Titles and Shufaa
Jambo Awadhi, Civil Appeal No. 176 of 2018, and The Director of Public
Prosecutions v. Li Ling Ling, Criminal Appeal No. 508 of 2015 (both
unreported). We shall apply these principles or any of them in our consideration
of the provision of the Act and other statutes relevant to our case where
necessary. The first relevant provision is section 43 of the Act which provides as
follows:
43. This Act shall not apply to:
(a) Criminal proceedings;
(b) applications and appeals to the Court of Appeal;
(c) proceedings by the Government to recover
possession of any public land or to recover any tax or the
interest on any tax or any penalty for non-payment or late
payment of any tax or any costs or expense in connection
with any such recovery;
(d) forfeiture proceedings under the Customs
(Management and Tariff) Act or the Excise (Management
and Tariff) Act·
(e) proceedings in respect of the forfeiture of a ship or
an aircraft;
(f) any proceeding for which a period of limitation is
prescribed by any other written law, save to the extent
provided for in section 46.
Then section 46 provides:

41
46 Where a period of limitation for any proceeding is
prescribed by any other written law, then unless the contrary
intention appears in such written law, and subject to the
provisions of section 43, the provisions of this Act shall
apply as if such period of limitation had been prescribed by
this Act.
The language of the two provisions is very clear in our view. It is clear that the
Act applies to all proceedings except those mentioned under section 43 (a) - (f).
It is clear again that under section 46 even those proceedings whose time limit is
prescribed by other statutes as mandated by section 43 (f), the time limits set by
those other statutes are deemed to be prescribed by the Act. Consistent with the
rules of statutory interpretation referred to earlier, there should not come a point
when section 43 and section 46 of the Act are in conflict.
Back to the case at hand, we shall proceed from the premise that there are
time limits for initiating labour matters. Inspired by Rule 10 (1) and (2) of the
Labour Institutions (Mediation and Arbitration) Rules, 2007, G.N. No. 64 of
2007, the learned High Court Judge in of Dr. Noordin Jella v. Mzumbe
University, Complaint No. 47 of 2008 (unreported) set the time limits as 30
days for a matter involving fairness of an employee’s termination, and 60 days
for any other dispute. While we are not determining whether the matter fell under
unfairness of the dismissal as we earlier intimated, we shall, in terms of section
46 of the Act, take the maximum time limit as being prescribed by the said Act
which is 60 days as argued by Mr. Kamala.
Counsel are at one that no consequences are provided for a labour dispute
which is filed out of time. While Mr. Kamala submits that the matter should have
been dismissed as required by section 3 (1) of the Act, Mr. Mfalla submits that
the Labour Court being a Court of equity as provided for under Rule 3 (1) of the
Labour Court Rules, 2007G.N. No. 106 of 2007, it correctly struck out the
matter.
Perhaps we should take cognizance of a recent case in which the issue of
the Labour Division being a court of equity came up. This was in the case of
Felician Rutwaza v. World Vision Tanzania, Civil Appeal No. 213 of 2019
(unreported). Before us the appellant had complained against the order of the
Labour Court striking out an application for revision and ordering refiling of a
proper application. Our determination of the complaint was as follows:
42
In our view, the court acted consistent with Rule 3(1) and
55 (1) of the Labour Court Rules/ 2007 G.N. No. 106 of
2007 (the Rules) made under section 55 (1) of the Labour
Institutions Act, [Cap 300 R.E 2019]. The former rule
provides that the Labour Court shall be a court of equity
whilst the latter empowers it to adopt any appointed
procedure for any matter not provided for.
We observed that the Labour Court did what the justice of the case in the
obtaining circumstances required. And what were those circumstances? The
respondent had been aggrieved by the award the CMA had made in favour of the
appellant. She filed a revision to the Labour Court within the statutory six weeks
but that court struck it out on account of some technicalities and ordered a
refiling of a proper application. The appellant's complaint was that the
subsequent application was time barred and should have been dismissed.
With respect, the facts in this case are diametrically different from the
facts of the case of Felician Rutwaza (supra), so we cannot go along with Mr.
Mfalla's argument of equity on the basis of that decision. First, in that case the
application for revision had originally been filed within time but was struck out
for reasons other than time limit. Secondly, the issue of time limit was just a
route to the destination, in that, the borne of the contention in that case was
different. In this case the issue of time limit and its consequences is the main and
only issue, so it is the destination. Besides, the inputs from counsel on the point,
are quite different. In this case one of the cases cited to us by the appellant's
counsel is John Cornel v. A. Grevo (T) Ltd, Civil Case No. 70 of 1998
(unreported) where Kalegeya J (as he then was) made this statement which we
adopt:
However unfortunate it may be for the plaintiff the Law of
Limitation, on actions, knows no sympathy or equity. It is
a merciless sword that cuts across and deep into all those
who get caught in its web. (Emphasis supplied).
On the basis of that statement, the law of limitation knows no equity, and we
subscribe to that.
We take note that the first objective of the Employment and Labour
Relations Act No. 6 of 2004 is to promote economic development through
43
economic efficiency, productivity and social justice. The learned High Court
Judge (Rweyemamu, J as she then was) appreciated that fact and proceeded to
state the following in Dr. Noordin lella (supra):
For one, economic development cannot be promoted by
allowing labour disputes to remain unresolved for an undue
long period, as that would keep both the employer and
employee tied up in disputes instead of being productively
engaged .... To revert to the submission of counsel for the
complainant, I stress that it is in regard to the nature of
labour disputes that time limits for initiating actions must
be provided.
We fully adopt that statement and add that, it would be inequitable if we allowed
one party to an employment contract to disregard time in instituting a complaint
against the other party. We think matters would not come to finality as required
if a party who allows grass to grow under his feet and delays in instituting an
action, would only be given an order to refile it. The very object of the law of
limitation would be defeated for, as C. K. Takwani writes in CIVIL
PROCEDURE, With Limitation Act, 1963, 7th Edition, Eastern Book
Company, at page 782:
Statutes on limitation are based on two well - known legal
maxims:
(i) The interest of the State requires that there should be an
end to litigation (interest reipublicae ut sit finis litium).
(ii) The law assists the vigilant and not one who sleeps over
his rights (Vigiiantibus non dormientibus jura-
subveniunt).
In addition, in The Director of Public Prosecutions v. Li Ling Ling we

underscored the principle that one provision of a statute cannot defeat another
provision of the same statute. In line with that, we are settled that section 46 of
the Act will defeat section 3(1) of the Act if a time - barred matter will be struck
out with leave to refile, instead of being dismissed.
Besides, we are inclined to hold that it is a rule of statutory interpretation
that if the legislature had intended time - barred employment matters to be struck
out, it would have expressly stated so. While we are still on this point, we should
44
also say in line with another rule of statutory interpretation, that in enacting the
Labour Institutions Act, No. 6 of 2004 and the Employment and Labour
Relations Act, 2004, the legislature must be assumed to have been aware of the
existence of the Act which had been in place since 1971. On this principle, see
Vepa P. Sarathi in a book titled Interpretation of Statutes, 5th Edition,
Eastern Book Company, 2013. The learned author states at pages 236- 237
thus:
The court must also assume that the legislature knew about
existing enactments when passing a law...The court ought
in general, in constructing an Act of Parliament to assume
that the legislature knows the existing state of the law and
did not intend to overthrow a fundamental legal principle in
the absence of clearly expressed contrary intention.
We subscribe to that principle in as much as the Act has been in place for so long
before the new labour laws were enacted. If the Parliament had intended the
contrary in the labour laws, it would have stated so clearly.
Finally, therefore, there was no basis for the learned High Court Judge to
strike out the complaint that had been presented in court after expiration of 60
days. In a similar situation in the case of Hezron M. Nyachiya v. Tanzania Union
of Industrial and Commercial Workers and Another, Civil Appeal No. 79 of
2001 (unreported), cited to us by the appellant's counsel, this Court held that,
although the Law Reform (Fatal Accidents and Miscellaneous Provisions)
Ordinance set the time limit for instituting actions to be six months, but did not
provide for the consequences of filing a matter out of time, section 3 of the Act
was applicable in dismissing the petition. In view of that position of the law, it
is our conclusion that the learned High Court Judge should have resorted to
section 3 (1) of the Act to dismiss the complaint instead of striking it out as she
did.
Accordingly, we allow the appeal, quash and set aside the order of striking
out the complaint with leave to refile, and replace it with an order of dismissal.
As this appeal arises from an employment cause, we order no costs.
Appeal allowed
45
BAYPORT FINANCIAL SERVICES (T) LIMITED v. CRESENCE
MWANDELE
AT MBEYA
(MWARIJA, NDIKA, and KWARIKO, JJ.A.)
(Appeal from the Judgement and Decree of the High Court of Tanzania,
Labour Division at Mbeya, Aboud, J. dated the 12th day of May, 2015 in
Labour Revision No. 33 of 2013)
Procedural Irregularity – Arbitrator met the Respondent in the absence of the
appellant and allowed the respondent to file written submissions out of time -
Whether the conduct of the arbitrator in meeting the Respondent in the absence
of the Appellant was in violation of Rule 5 (h) and (i) of the Labour Institutions
(Ethics and Code of Conduct for Mediators and Arbitrators) Rules, 2007G.N.
No. 66 of 2007 thus amounted to misconduct.
Jurisdiction – Internal appellate mechanism - Respondent referred the dispute
to the CMA prematurely without exhausting the internal mechanism – Whether
the Arbitrator wrongly entertained the respondent's referral to the Commission
for Mediation and Arbitration.
This matter originates from the Commission for Mediation and Arbitration
Mbeya ("the CMA''). The respondent was employed by the appellant in the
position of Regional Manager Mbeya. He filed a complaint before the CMA
against the appellant alleging unfair termination of employment. The appellant
resisted the claim for the reason that the termination was fair as it followed due
process of the law. In the end, the CMA found that the respondent was unfairly
terminated on account of the partiality of the Chairman of the Committee and
non-adherence of the procedure. Aggrieved by that decision, the appellant
46
lodged a revision before the High Court of Tanzania Labour Division where he
partly succeeded. The High Court upheld the arbitral award save for the payment
of subsistence allowance which was instead ordered to be paid on the basis of
the respondent's monthly salary. The appellant was further aggrieved by the
decision of the High Court, hence the filing of this appeal in the Court.
Held: (i) There is no law which forbids a terminated employee to refer the
dispute to the CMA simply because he/she has not exercised the right of appeal
within the employer's organization.
(ii) According to Rule 29 of the Labour Institutions (Mediation and Arbitration)
Rules G.N. No. 64 of 2007, applications before the CMA should be made by
informing all parties concerned. This means that the Rules do not provide for ex
parte hearing without prior notification to opposite party. From these provisions.
Mediators and Arbitrators are not allowed to meet with one party in the absence
of the other.
(iii) These requirements of law were aimed to ensure transparency and fairness
to the parties concerned. Failure to comply with the provisions of law creates
mistrust to those who are charged with a duty of determining employees' rights.
(iv) The law says that an arbitral award may be set aside if there was misconduct
on the part of the Arbitrator. By entertaining the respondent alone and granting
his request for extension of time in exclusion of the appellant, the Arbitrator not
only extended an unfair advantage to the respondent but also abrogated the
appellant's right to be heard on the issue.
Appeal allowed
Cases referred to
(1) MUCOBA Bank PLC v. Herry Bwende, Labour Revision No. 32 of
2017; and
(2) Jonathan M. Mwamboza v. Bishop Dr. Stephen Munga & Another, Labour
Dispute No. 1 of 2011.

(1) Rule 5 (h) and (i) of the Labour Institutions (Ethics and Code of Conduct
for Mediators and Arbitrators) Rules, 2007G.N. No. 66 of 2007; and
47
(2) Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009
Messrs. Msafiri and Masatu, for Appellant

Mr. Habibu, for Respondent

26th November, 2020
KWARIKO, J.A.: This matter originates from the Commission for Mediation
and Arbitration Mbeya (hereinafter "the CMA''). The respondent, Cresence
Mwandele was employed by the appellant in the position of Regional Manager
Mbeya. He filed a complaint before the CMA against the appellant alleging
unfair termination of employment, claiming a total of TZS 362,732,000.00 being
200 months' salaries, severance allowance and repatriation expenses as
compensation. The appellant resisted the claim for the reason that the
termination was fair as it followed due process of the law.
The facts which led to the dispute can briefly be stated as follows: On
17/3/2011 the respondent received a letter from the appellant to hand over the
Mbeya Office and shift to a new working station at Ifakara. He was required to
report to that station on 01/4/2011. However, the respondent did not report to the
new working station. This move aggrieved the appellant who issued a letter to
the respondent to show cause why disciplinary measures should not be taken
against him.
On 9/5/2011 the respondent was summoned to attend before the
Disciplinary Committee (hereinafter "the Committee'') for hearing which was
conducted on 12/5/2011. The complaint by the appellant was failure by the
respondent to follow the instruction of the Chief Executive Officer to report to a
new working station at Ifakara. On his part, the respondent complained that the
transfer amounted to demotion because Ifakara was a satellite station as
compared to the Regional Office at Mbeya.
At the end of the hearing, on 13/5/2011 the Committee found the
respondent to have committed a disciplinary offence of gross insubordination
and recommended his termination. The respondent was given five days within
which to appeal against the findings. He was also served with the Committee’s
report on the same date.
48
The respondent did not appeal and on 23/5/2011 the appellant terminated
his employment. The termination letter was received by the respondent on
24/5/2011. Aggrieved by the termination, the respondent filed his complaint
before the CMA on 13/6/2011.
In the end, the Arbitrator found that the respondent was unfairly
terminated on account of the partiality of the Chairman of the Committee and
non-adherence of the procedure. The respondent was thus awarded a total of TZS
48,027,587.00 being severance allowance, 25 months remuneration, repatriation
costs and daily subsistence allowance from the date of termination to the date of
payment.
Aggrieved by that decision, the appellant lodged a revision before the
High Court of Tanzania Labour Division at Mbeya where he partly succeeded.
The High Court upheld the arbitral award save for the payment of subsistence
allowance which was instead ordered to be paid on the basis of the respondent's
monthly salary.
The appellant was further aggrieved by the decision of the High Court,
hence has filed this appeal to the Court. He has raised the following four grounds
of appeal:
1. That, the High Court erred in law in failing to hold that
the conduct of the arbitrator in meeting the counsel for the
Respondent in the absence of the Appellant was in violation
of Rule 5 (h) and (i) of the Labour Institutions (Ethics and
Code of Conduct for Mediators and Arbitrators) Rules,
2007 G.N. No. 66 of 2007 thus amounted to misconduct.
2. That, the High Court erred in law in failing to hold that
the Arbitrator did not provide legal justification for granting
of compensation of more than 12 months' salary as required
by law.
3. That, the High Court erred in law in failing to hold and
decide that the respondent having admitted to have secured
a new employment immediately after and at the place of
termination was not entitled to repatriation payment from
Mbeya to Dar es salaam.
4. That, the High Court erred in law in failing to hold and
decide that the Arbitrator wrongly entertained the
Respondent's referral to the Commission for Mediation and
49
Arbitration which had been prematurely made prior to
exhausting a right of appeal at the place of work.
Pursuant to Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 as
amended, both parties filed written submissions for and against the appeal which
were adopted during hearing.
At the hearing of the appeal, Messrs. Denis Msafiri and Makaki Masatu,
learned advocates represented the appellant whilst the respondent enjoyed the
services of Mr. Kamru Habibu, also learned counsel. For the reasons that will be
apparent in the course of this judgment, we will consider the counsel's
submissions in relation to the first and fourth grounds of appeal only.
Having considered the submissions for and against the appeal, we propose
to start with the fourth ground of appeal which touches on the issue of
jurisdiction of the CMA.
The appellant is adamant that the respondent referred the dispute to the
CMA prematurely as he had not exhausted the internal mechanism. It is in record
that the respondent was given five days within which to appeal against the
findings of the Committee counting from 13/5/2011. However, the respondent
did not exercise that right until he was terminated from employment on
23/5/2011 and the same communicated to him on 24/5/2011. Therefore, by
23/5/2011 the time within which the respondent could have appealed had
expired. He referred the dispute to the CMA on 13/6/2011. For these
circumstances, the respondent could not have gone back to appeal to the
appellant's institution as he was already time barred.
Further, there is no law which forbids a terminated employee to refer the
dispute to the CMA simply because he/she has not exercised the right of appeal
within the employer's organization. In addition to the foregoing, the appellant
failed to tell the Court to whom the respondent was supposed to appeal. Although
the respondent acknowledged that he was aware of the appeal process, there was
no policy mechanism, or regulations in place on how one could exercise such
right. See also a similar situation in the decision of the High Court of Tanzania
in the case of MUCOBA Bank PLC v. Herry Bwende, Labour Revision No. 32
of 2017 at Iringa (unreported) where the respondent referred the complaint to the
CMA after having not been informed where to appeal against the decision of the
disciplinary committee. The court in that case stated that the respondent did not
50
err to have referred the dispute to the CMA. The instant case is thus
distinguishable from the cited persuasive decision of Rev. Jonathan M.
Mwamboza v. Bishop Dr. Stephen Munga & Another, Labour Dispute No. 1 of
2011. This is because in that case the appeal machinery was vividly explained
in the Diocese Constitution. It was provided that the decision to disrobe the
complainant was made by the Pastoral Council and the appeal lay to the
Executive Council and then to the Synod. Unlike in that case no one explained
the appeal process within the appellant's institution. This ground is therefore
devoid of merit.
Coming to the first ground of appeal, we have perused the record before
the CMA and found that the parties closed their evidence before the Arbitrator
on 22/8/2012 with an order for them to submit written submissions on 10/4/2012.
The Award was scheduled to be delivered on 10/5/2012. There is no any record
to show whether and how the parties submitted their written submissions.
Instead, the Arbitrator in his decision at page 186 of the record of appeal stated
that on 10/4/2012 the respondent appeared before him and sought extension of
time to file written submissions the prayer which was granted. The Arbitrator
stated that the appellant neither filed his written submissions nor applied for an
extension of time to do so. In that decision the Arbitrator referred to what he
termed the respondent's lengthy written final submissions.
It is therefore not disputed that the Arbitrator met and heard the respondent
on his plea for extension of time to lodge written submissions in the absence of
the appellant to his detriment. The procedure to prefer applications before the
CMA was clearly flouted. This is provided for under Rule 29 of G.N. No. 64 of
2007 as follows:
Rule 29- (1) Subject to Rule 10, this Rule shall apply, to any
of the following-
(a) condonation, joinder substitution, variation or
setting aside an award;
(b) jurisdictional dispute;
(c) other applications in terms of these Rules.
(2) An application shall be brought by notice to all persons
who have an interest in the application.
According to the cited provision, applications before the CMA should be made
by informing all parties concerned. This means that the Rules do not provide for
51
ex parte hearing without prior notification to opposite party as it was done by
the Arbitrator in this case when he heard the respondent alone and extended time
for him to file written submissions. It is our considered view that these
requirements of law were aimed to ensure transparency and fairness to the parties
concerned. Failure to comply with the provisions of law creates mistrust to those
who are charged with a duty of determining employees' rights. We are not,
therefore, prepared to go along with the respondent's counsel that the Arbitrator's
conduct can be saved by sub-rule (11) of Rule 29 of G.N. No. 64 of 2007 which
provides thus:
Notwithstanding this rule, the Commission may determine
an application in manner it deems proper.
Our understanding of this provision is that until the application is brought before
all persons having interest in the matter as provided under Rule 29 (2), the
Commission cannot exercise its discretion under sub-rule (11). Therefore, the
Arbitrator ought to have convened both parties in the case before extending the
time to the respondent to file the submissions.
The appellant argues that the Arbitrator’s action amounted to misconduct
whilst the respondent termed it as a mere error on the part of the Arbitrator. Rule
5 (h) (i) of G.N. No. 66 of 2007 provides thus:
Rule 5 - All mediators and Arbitrators shall in the course of
discharging their duties:
(h) Avoid having any communication except for the
purpose of arranging the dates for meeting or hearing in
which case the outcome of those conversations should be
notified to both parties; and
(i) Avoid having any meeting with a party except
in the presence of the other. [Emphasis supplied]
From these provisions, Mediators and Arbitrators are not allowed to meet with
one party in the absence of the other. Moreover, section 91 (2) (a) of the Act
provides that:
5. 91- (1) N/A
(2) The Labour Court may set aside an arbitration Award
made under this Act on ground that-
a) There was misconduct on the part of the Arbitrator.
52
The question to be answered at this juncture is whether the Arbitrator committed
misconduct to warrant setting aside the award. As stated earlier, the law says that
an arbitral award may be set aside if there was misconduct on the part of the
Arbitrator. In the instant case, we have seen that the Arbitrator committed
misconduct by having a meeting with the respondent only and gave orders
material to the case.
By entertaining the respondent alone and granting his request for
extension of time in exclusion of the appellant, the Arbitrator not only extended
an unfair advantage to the respondent but also abrogated the appellant's right to
be heard on the issue. Furthermore, we are perturbed that in his award at page
186 the Arbitrator had the audacity to condemn the appellant's failure to lodge
its submissions indicating that the said failure was prejudicial to its case. In our
considered view, the Arbitrator's act was a fundamental mistake going to the root
of the matter as it resulted in making the arbitral forum uneven and biased. We
would conclude that the conduct vitiated the award which we hereby set aside.
This appeal has merit and we allow it. Having set aside the award, we
remit the file to the CMA for the complaint to be entertained by another
Arbitrator. This being a labour related matter, we make no order as to costs.
Appeal allowed
BENEDICT MUMELLO v. BANK OF TANZANIA

AT DAR ES SALAAM
(RAMAPHANI, MUNUO. and KAJI JJA.)
(Appeal from the Ruling and Order of the High Court of Tanzania at Dar es
Salaam, Chipeta, J. dated 13th July, 2000 in Civil Appeal No. 179 of 1999)
Application for extension of time - Ground for delay being failure to be supplied
with the necessary documents in time, and being supplied with confusing two
copies of decrees bearing different dates and different amounts – High Court
found the same to be sufficient grounds and granted the extension prayed for –
Whether the two grounds amounted to "sufficient cause.''
53
The appellant appealed against the decision of the High Court at Dar es Salaam
dated 13.7.2000, in Civil Appeal No. 179 of 1999, in which the respondent was
granted extension of time to appeal against the decision of the Kisutu Resident
Magistrate's Court in Employment Cause No. 144 of 1994 delivered on
22.12.1998. The gist of the appeal was that the reasons given by the respondent
were not sufficient to warrant the grant of the extension of time.
Held: (i) It is trite law that an application for extension of time is entirely in the
discretion of the court to grant or refuse it, and that extension of time may only
be granted where it has been sufficiently established that the delay was with
sufficient cause.
(ii) The delay to be supplied with copies of proceedings and judgment, and the
two copies of decrees containing different material particulars, contributed to the
delay by the respondent to appeal within the prescribed period. The delay was
with sufficient cause.
Appeal struck out

Cases referred to
(1) Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A.
Mwalwanda - Civil Application No. 6 of 2001; and
(2) Dar es Salaam City Council v. Jayantilal P. Rajani (CAT) Civil

(1) Order XXXIX Rule 1 (1) of the Civil Procedure Code, 1966.
Mr. Luguwa, for Appellant

Ms. Mutabuzi, for Respondent
23 August 2006
KAJI J.A.: The appellant, Benedict Mumello, is appealing against the decision
of the High Court at Dar es Salaam (Chipeta J), dated 13.7.2000, in Civil Appeal
No. 179 of 1999, in which the respondent, the Bank of Tanzania was granted
54
extension of time to appeal against the decision of Kisutu Resident Magistrate's
Court in Employment Cause No. 144 of 1994 delivered on 22.12.1998.
Briefly the facts giving rise to the appeal may conveniently be stated as follows:
The appellant was employed by the respondent from 1.10.1979. On 31.3.1994
he was served with a letter of retrenchment. He was paid Shs. 8,641,347/25 as
terminal benefits. However, he complained that he was underpaid as the
respondent had computed his terminal benefits basing on the old salary. It would
appear there was no compromise. On 30.12.1994 the appellant instituted the
above Employment Cause claiming for Shs. 11,926,499/40 being the amount he
claimed he was underpaid. The respondent conceded the error and paid him Shs.
11,893,523/45 on 23.6.1995. The appellant then sued the respondent claiming
for payment of Shs. 20,000/= as subsistence allowance and Shs. 5,000/= as out
of pocket allowance per day from 1.4.1994 till on 23.6.1995 when he was paid
the difference. The respondent vehemently resisted the claim on the ground that
those allowances were only payable to employees who are in service when
traveling out of their stations on duty, and that the appellant was no longer its
employee from 31.3.1994 when he was served with the letter of redundancy and
got paid his terminal benefits. The trial court granted the appellant's claim with
interest at the rate of 31% from 1.4.1994 to the date of judgment, and at the court
rate of 9% from the date of judgment to the date of full payment.
The respondent was not satisfied. On 6.1.1999 the respondent applied to be
supplied with a certified copy of judgment and proceedings for appeal purpose.
The same were supplied on 8.12.1999. On 16.12.1999 the respondent applied for
extension of time within which to appeal. The ground for delay being failure to
be supplied with the necessary documents in time, and being supplied with
confusing two copies of decrees bearing different dates and different amounts.
The High Court found the same to be sufficient grounds and granted the
extension prayed for. The appellant was dissatisfied; hence this appeal after
being granted leave by the Court.
Mr. Luguwa, learned counsel for the appellant, has preferred two grounds of
appeal, namely:
1. That his Lordship the High Court Judge erred in law when he
granted extension of time to the respondent to appeal in the
absence of sufficient reasons for the delay to appeal.
55
2. That his Lordship the High Court Judge erred in law in basing
his decision on the evidence of the affidavit of Bosco Ndimbo
Kimela, a person who was not having the conduct of that case
in the trial Resident Magistrate's Court.
It is trite law that an application for extension of time is entirely in the discretion
of the court to grant or refuse it, and that extension of time may only be granted
where it has been sufficiently established that the delay was with sufficient
cause.
In the instant case time was extended by the High court mainly on two
grounds. First, that, although the respondent had lodged the notice of appeal in
time and applied for copies of proceedings and judgment in time, yet it was not
supplied with the same till on 13.12.1999, and that, immediately thereafter it
lodged the application on 16.12.1999. Second that the trial court contributed also
materially to the delay and confusion by supplying the respondent with two
copies of decree bearing different amounts and different dates.
The crucial issue, therefore, is whether these two grounds amount to
"sufficient cause.'' Here we may pause and ask: What amounts to sufficient
cause? Addressing a similar issue of what amounts to sufficient cause, a Single
Judge of the Court, Nsekela JA, in the case of Tanga Cement Company Limited
v. Jumanne D. Masangwa and Amos A. Mwalwanda - Civil Application No. 6
of 2001 (unreported), had this to say:
What amounts to sufficient cause has not been defined.
From decided cases a number of factors has to be taken into
account, including whether or not the application has been
brought promptly; the absence of any or valid explanation
for the delay; lack of diligence on the part of the applicant.
The learned Single Judge cited the case of Dar es Salaam City Council v.
Jayantilal P. Rajani (CAT) Civil Application No. 27 of 1987 (unreported). In
the instant case, it is common ground that the respondent applied for copies of
the proceedings and judgment on 6.1.1999 which was just about 14 working days
of the date of the decision intended to be appealed against. It is also common
ground that the respondent was supplied with the same on 8.12.1999 after a
reminder and filed the application on 16.12.1998. In our view, applying for
copies of proceedings and judgment within such a short time from the date of
judgment, and later making a follow up by way of a reminder, and finally lodging
56
the application immediately after being supplied with the same, depicts diligence
on the respondent. There is a complaint by the appellant's learned counsel that
since the respondent had not applied also for a copy of decree, it would not have
been able to lodge an appeal even if it would have been supplied with the same.
Indeed, this would probably have been so. But there is nothing suggesting
that it would not have applied for extension of time. If that would have been the
case, we cannot speculate what the High Court would have said. In fact, this
challenge of not applying for a copy of the decree was raised by the learned
counsel for the appellant from the bar. It is not reflected anywhere in the
appellant's counter-affidavit dated 25.1.2000.
As far as the confusion caused by the two copies of decree is concerned,
the respondent preferred this as one of the grounds for the delay in paragraph 6
of Kimela's affidavit. But in reply the appellant had deponed in paragraph 5 of
the counter-affidavit as follows:
5. That the contents of paragraph 6 of the affidavit are false
as there was no confusion at all regarding the copies of the
decree because both copies contained the same particulars.
We doubt whether the appellant was serious when he deponed so. We say so
because the two copies of the decree do not contain the same particulars. The
first is dated and signed on 20.4.1999, and shows interest to be based on the
principal amount of Tshs. 11,893,523.45.
The second one is dated and signed on 30.4.1999, showing interest to be
based on the principal amount of Tshs. 11,926,499.40. With these glaring
conflicting confusions, the trial court cannot escape the blame of contributing to
the delay as held by the High Court. There is a complaint by the appellant in
paragraph 3 of his counter- affidavit before the High Court that, since the decrees
were ready way back in April 1999, the respondent should have collected it (or
them) thereabout instead of waiting for so long. We appreciate this. But even if
the respondent would have collected them or either of them much earlier, it
would not have been able to prepare and prefer an appeal because copies of
proceedings and judgment were not yet ready (See ORDER XXXIX Rule 1 (1)
of the Civil Procedure Code, 1966). They became available on 8.12.1999.
Lastly, there is a complaint by the appellant's learned counsel that the
affidavit by Kimela should not have been considered because he was not the one
who conducted the case in the trial court, and that his deposition is hearsay.
57
We have carefully gone through the impugned affidavit. It is common
ground that the deponent, Kimela, was the Principal Officer of the respondent
bank. All his deposition is centred on what was known to him as a principal
officer of the respondent, except perhaps paragraph 7 which says:
7. That in following up the copy of the decree, the applicant
was told to wait for the computer typed decree and was
never given or shown the one typed with typewriter.
Even if this paragraph is expunged, the totality of the remaining 17 paragraphs
satisfies the requirement of "sufficient cause".
We note from the record that in granting the extension of time applied for
the learned judge of the High Court considered also the chances of success of
the intended appeal where he said:
What is more the intended appeal cannot be said to be
without merit.
On our part we are unable to say positively whether the intended appeal
has overwhelming chances of success at this stage with the limited information
availed to us.
In conclusion, we are of the firm view that, the delay to be supplied with
copies of proceedings and judgment, and the two copies of decrees containing
different material particulars, contributed to the delay by the respondent to
appeal within the prescribed period. In that respect, it is our considered view that
the delay was with sufficient cause. For the reasons stated, we dismiss the appeal
with costs.
Appeal struck out
BERNARD GINDO & 27 OTHERS v. TOL GASES LIMITED

AT DAR ES SALAAM
(MKUYE, SEHEL, and KITUSI, JJA.)
CIVIL APPEAL NO, 128 OF 2016
58
(Appeal from the Ruling and Orders of the High Court of Tanzania Labour
Division at Dar es Salaam, Rweyemamu. J., dated 15th March, 2013 in Labour
Revision No.18 of 2012)
Leave to file supplementary record of appeal - Court granted leave to appellants
to file a supplementary record of appeal in order to include a properly drawn
certificate of delay – On the scheduled day for hearing Counsel for appellants
makes another application for filing a supplementary record of appeal - Whether
second application is time barred – Whether the oxygen principle applies - Rule
96 (8) of the Rules
Interpretation – What is meant by the phrase ‘a similar application on the same
matter' - Rule 96 (8) of the Tanzania Court of Appeal Rules, 2009
The appellants were employees of the respondent. On 15th August, 2011 they
were retrenched from work on ground that the respondent's business was
experiencing economic and financial hardship. Before their retrenchment, there
were several unsuccessful consultative meetings between the appellants through
their registered trade union (TUICO) and the respondent which resulted in the
filing of a dispute before the Commission for Mediation and Arbitration (CMA).
That dispute was decided in favour of the respondent. Aggrieved, the appellants
filed an application for revision before the High Court, Labour Division. The
application was dismissed for want of merit. Still aggrieved, on 26th March, 2013
they lodged a notice of appeal and applied for the necessary documents. Upon
receipt of the documents and a certificate of delay, the appellants lodged their
appeal to this Court.
When the appeal was first called for hearing the Court noted and invited
parties to address it on the competency of the appeal regard being to a defective
certificate of delay. Conceding to the defect, counsel for the applicants applied
for leave to file a supplementary record of appeal to include a correct certificate
of delay. The application was granted and the correct certificate was filed with
the Court. The matter was scheduled for hearing. When the matter was called for
hearing counsel for appellants sought for leave of the Court to file a
supplementary record of appeal in order to include exhibits which were missing
but were considered and held by CMA to be proof on compliance with the law
on retrenchment.
Held: (i) The overall objective of the introduction of the oxygen principle in the
Appellate Jurisdiction Act, [Cap. 141 R.E 2002] vide Written Laws
59
(Miscellaneous Amendments) (No.3) Act, 2018 (Act No. 8 of 2018) is to
facilitate justice delivery and ensure that the ends of justice is met to both parties,
expeditiously, proportionately and at affordable cost. The introduction of the
overriding objective was not designed or intended to disregard the rules of
procedure couched in mandatory terms.
(ii) The phrase ‘a similar application on the same matter' simply refers to the
application for leave to file supplementary record of appeal which was granted
pursuant to sub-rule (7) of Rule 96 of the Rules on the very same matter. In other
words, the Rule precludes a party who had been granted leave to file
supplementary record of appeal to be entertained again on a similar or like
application.
Appeal struck out
Cases referred to
(1) Puma Energy Tanzania Limited v. Ruby Roadways (T) Limited, Civil
Application No. 3 of 2018;
(2) Mondorosi Village Council and Two Others v. Tanzania Breweries
Limited and Four Others, Civil Appeal No. 66 of 2017;
(3) Njake Enterprises Limited v. Blue Rock Limited and Another, Civil Appeal
No. 69 of 2017; and
(4) Martin D. Kumalija & 117 Others v. Iron and Steel Ltd, Civil Application
No. 70/18 of 2018.

(1) Rule 96 (8) of the Tanzania Court of Appeal Rules, 2009; and
(2) Rule 96 (1) or (2) of the Tanzania Court of Appeal Rules, 2009.
Mr. Bundala, for Appellants

Mr. Killian, for Respondent
RULING OF THE COURT

24th December, 2020
60
SEHEL, J.A.: When the appeal was called before us for hearing, Messers Daniel
Ngudungi and Elisha Mosha, learned advocates appeared before us holding brief
for Mr. Kalolo Bundala, learned advocate for the appellants. They intimated to
the Court that they had full instructions to proceed with the hearing. On the other
part, Mr. Frank Kilian, learned advocate appeared for the respondents.
After taking the floor, instead of arguing the appeal, Mr. Ngudungi sought
leave to file a supplementary record of appeal. Hence, this is a ruling on that
application.
Before going to the merit of the application, we find it apt to give brief
facts relevant to the present application. The appellants were employees of TOL
Gases Limited, the respondent. They were each employed at different dates and
positions. On 15th August, 2011 they were retrenched from work on ground that
the respondent's business was experiencing economic and financial hardship.
Before their retrenchment, there were several unsuccessful consultative
meetings between the appellants through their registered trade union (TUICO)
and the respondent which at the end prompted the appellants to file a dispute
before the Commission for Mediation and Arbitration (CMA). That dispute was
decided in favour of the respondent. Aggrieved, the appellants filed an
application for revision before the High Court, Labour Division. The application
was dismissed for want of merit.
Still aggrieved, on 26th March, 2013 they lodged a notice of appeal and
also wrote a letter applying for copies of proceedings, ruling and drawn order
whose copies were served to the respondent. Upon receipt of the documents and
a certificate of delay, the appellants lodged their appeal to this Court with five
grounds of appeal, namely:
1. The learned Judge erred in law in holding that the appellant's
termination on 14th August, 2011 was procedurally fair on
the basis of alleged adequate consultation.
2. The learned Judge erred in law and in fact in holding that the
matter could not be referred back to the Commission for
Mediation and Arbitration (CMA) as it involved application
and interpretation of Voluntary Agreement by virtue of
CMA’s order of 23/05/2011.
3. The High Court's decision that the retrenchment decision
could not be faulted as neither party referred the matter to the
61
High Court Labour Division was premature and thus the
teamed Judge erred in law.
4. The teamed judge erred in law in holding that section 38(3)
of the Employment and Labour Relations Act of 2004 (“the
Act”) applied only to termination where employees refuse to
accept new terms and conditions of employment
5. The Commission of Mediation and Arbitration and the High
Court judge both erred in law in permitting Advocate Kariwa
to represent the Employee in the proceedings in CMA and
thereafter in the Labour Court when he was a potential
witness, having taken part in the various meeting as
Chairman representing the Respondent Employer.
When the appeal was first called for hearing on 10th June, 2020, Messers
Kamazima Iddi and Frank Kilian, learned advocates, appeared for the appellants
and respondent, respectively. On that date, the Court noted and invited parties to
address it on the competency of the appeal regard being to a defective certificate
of delay that had certified a wrong date and it made reference to the name of the
1st appellant while leaving out the names of other appellants.
After a short dialogue with the Court, Mr. Iddi conceded on the defects.
He, therefore, sought leave of the Court, in terms of Rule 96 (7) of the Tanzania
Court of Appeal Rules ("the Rules") to file a supplementary record of appeal to
include a correct certificate of delay. Mr. Kilian did not object to the prayer.
Having heard the submission from the counsel for the parties, the Court
reminded the counsel for the appellant on his legal duty of ensuring that a correct
certificate of delay was included in the record of appeal. Nonetheless, mindful
of the overriding objective principle, it granted leave to the appellants to file a
supplementary record of appeal to include a properly drawn certificate of delay.
That leave was granted in terms of Rule 96 (7) of the Rules and the appellants
were given thirty days counted from the date leave was granted to file
supplementary record of appeal. In compliance with the Court's order, the
appellants on 8th July, 2020 filed the supplementary record of appeal.
After the appellants filed the supplementary record of appeal, the appeal
was scheduled for hearing before us. As stated earlier, Mr. Ngudungi opted to
seek leave of the Court to file a supplementary record of appeal in order to
62
include sixteen (16) exhibits, to wit, Exhibits D1 to D 16 which were tendered
by the respondent and admitted by CMA. It suffices to state here that the exhibits
were considered and held by CMA to be proof on compliance with the procedure
of termination as envisaged under section 38 of the Act.
Having carefully considered the rival arguments by both learned counsel
for the parties, we note that parties are at one that on 10th June, 2020 the Court
granted leave to the appellants to file the supplementary record of appeal in order
to include a properly drawn certificate of delay. That order, as we have shown,
was made pursuant to Rule 96 (7) of the Rules. The learned counsel for
respondent contended that since the appellants were already granted leave to file
supplementary record of appeal they are barred to bring a similar application by
the provision of Rule 96 (8) of the Rules which states:
Where leave to file supplementary record under sub-rule (7),
has been granted, the Court shall not entertain similar
application on the same matter.
It is significant to note here that the provisions of Rule 96 (8) are couched in
mandatory terms. Under this Rule the Court is enjoined not to entertain "a
similar application on the same matter". The phrase "a similar application on
the same matter' is not defined in the Rules but the language used in that Rule
does not require any binary definition. Giving its simple, plain and literal
meaning, the word "similar' as defined in the Oxford Advanced Learner's
Dictionary, 7th Edition printed by Oxford Press in 2005 means "like somebody
or something but not exactly the same.11 And the word "same’ is defined in
the Black's Law Dictionary, 9th Edition printed by West Thompson in 2009 to
mean "the very thing just mentioned or described: it or them."
Therefore, the phrase "a similar application on the same matter' simply
refers to the application for leave to file supplementary record of appeal which
was granted pursuant to sub-rule (7) of Rule 96 of the Rules on the very same
matter. In other words, the Rule precludes a party who had been granted leave
to file supplementary record of appeal to be entertained again on a similar or like
application. In the case of Puma Energy Tanzania Limited v. Ruby Roadways (T)
Limited, Civil Application No. 3 of 2018, we lucidly explained the purpose and
reason of enacting Rule 96 (7) and (8) of the Rules. In that appeal, we were faced
with almost similar scenario where the appellant was granted leave, in terms of
Rule 96 (7) of the Rules, to file supplementary record of appeal to include vital
documents missing from the record of appeal. The appellant did comply with the
63
Court's order but when the appeal was called again for hearing the Court
observed and invited parties to address it on the defective decree. The counsel
for the appellant conceded to the defect and sought leave to file a further
supplementary record of appeal in order to include a properly drawn decree. The
Court being mindful that the applicant was once granted leave to file
supplementary record of appeal, had this to say:
We think it will now be clear that rule 96 (7) was added
with a view to giving effect to the overriding objective
particularly section 3A (1.) {c} of AJA and rule 2 of the
Rules which enjoin the Court to handle all matters
before it with a view to attaining timely disposal of the
proceedings at a cost affordable by the respective
parties. That explains why, instead of striking out the
appeal for being incompetent which would have meant
that the appellant starting the appeal process afresh, it
granted leave to lodge a supplementary record.
That was perfectly done to attain not only final disposal
of the appeal but also at a cost affordable to the
appellant. Concomitant with the above, it is to be noted
that section 3B (2) (b) of A1A enjoins the Court to
ensure efficient use of the available judicial and
administrative resources. It is for this reason, rule 96
(8) was added to preclude the Court from entertaining
further applications meant to cure like defects in the
records of appeal. The bottom line in our view is that
defects in the record of appeal attributed to the omission
of essential documents required under rule 96 (1) or (2) of
the Rules can only be cured once in terms of rule 96 (8) of
the Rules. Unlike Mr. Nyika, we are unable to find
purchase in his argument that a litigant is given a blank
cheque to resort to rule 96(7) of the Rules as long as the
subsequent application does not relate to the same
documents for which leave to file a supplementary record
was granted in a previous application. In our view, rule
96 (8) couched in mandatory terms, serves as a tool to
check sloppiness amongst litigants which, if not
controlled may militate against the very spirit behind
64
the overriding objective. That being the case, we do not
think the learned counsel is right in inviting the Court to
invoke the overriding objective to cure yet another defect
in the record of appeal [Emphasis is added].
We reiterate the above position and we hasten to add that the overall objective
of the introduction of the oxygen principle in the Appellate Jurisdiction Act,
[Cap. 141 R.E 2002] (the Act) vide Written Laws (Miscellaneous Amendments)
(No.3) Act, 2018 (Act No. 8 of 2018) is to facilitate justice delivery and ensure
that the ends of justice is met to both parties, expeditiously, proportionately and
at affordable cost. From the plain meaning of the language of the Rule and by
giving its literal meaning we do not see any doubt or difficulty in its construction
and we do not see any reason as to why we should deliberately impose upon
ourselves a construction of the overriding objective as Mr. Ngudungi would like
us to do. To our understanding, there is no overriding objective principle to be
spelt out from it. In a number of occasions this Court has reiterated now and
then that the introduction of the overriding objective was not designed or
intended to disregard the rules of procedure couched in mandatory terms. (See
the Mondorosi Village Council and Two Others v. Tanzania Breweries Limited
and Four Others, Civil Appeal No. 66 of 2017, Njake Enterprises Limited v.
Blue Rock Limited and Another, Civil Appeal No. 69 of 2017, and Martin D.
Kumalija & 117 Others v. Iron and Steel Ltd, Civil Application No. 70/18 of
2018 (all unreported)).
In the matter at hand, the learned counsel for the appellants acknowledged
that a similar application for leave to file a supplementary record of appeal was
made and granted by this Court on 10th June, 2020. Therefore, by virtue of Rule
96 (8) of the Rules this Court cannot entertain the same prayer. That being the
case, we entirely concur with Mr. Kilian that the appeal before us is incompetent
for lacking vital documents. We say so because the omitted documents are
relevant for the determination of the grounds of appeal. The non-inclusion of the
exhibits which are relevant in the present appeal is in violation of Rule 96 (2) of
the Rules which renders the record of appeal to be incomplete and incompetent.
In the end, pursuant to Rule 96 (8) of the Rules, we decline the application
for filing supplementary record of appeal and since we find the appeal to be
incompetent before us we proceed to strike it out. We make no order for costs as
the appeal arose from a Labour dispute.
65
Appeal struck out
BULYANHULU GOLD MINES LIMITED v. PASCHARY

ANDREW STANNY
AT SHINYANGA
(MKUYE, GALEBA, and KAIRO, JJ.A.)

(Appeal from the Decision of the High Court of Tanzania, Labour Division, at
Shinyanga, Mdemu, J., dated 26th February, 2021 in Labour Revision No. 8 of
2020)
Jurisdiction – power of CMA – circumstances under which the labour dispute

can be referred to arbitration without going through the mediation.
Termination – incapacitation – illness work related – report of OSHA and that
of other medical experts – which one of the two is credible evidence.
Termination – ground of ill-health – factors to be considered.
Burden of proof – unfair termination – who has burden to proof unfair
termination between the employer and employee.
The respondent, was employed by the appellant, initially as a Mining Trainee.

He was promoted up to his last position of Scoop Operator at the time he was
terminated from the employment due to ill health following impaired hearing
capacity of his right ear. The respondent challenged the termination as unfair
before the CMA. The CMA found that the respondent’s termination was, indeed
unfair. Aggrieved by the decision of the CMA the appellant, filed a revision
before the High Court of Tanzania Labour Division. Nonetheless, the application
was dismissed by the Court. The appellant was further aggrieved by the dismissal
of her application for revision, hence the present appeal.
66
Held: (i) Generally and in the normal course of labour dispute resolution legal
processes, mediation is necessary under rule 4 (2) of the Labour Institutions
(Mediation and Arbitration Guidelines) Rules, Government Notice No. 67 of
2007, (the Mediation and Arbitration Rules), but, it is not in every circumstance,
that mediation has dogmatically to precede arbitration.
(ii) There are circumstances where a labour dispute may go to arbitration straight
without necessarily having to be mediated first, particularly in circumstances
where mediation was not concluded in thirty (30) days, as required by section 86
(4) of the ELRA.
(iii) The right report to attach more credence on the aspect of whether the illness
was work related or not is not the report from MNH. It is that of OSHA.
(iv) The law relevant for termination of employment based on ill health is
contained in sections 37 (1), (2) (a) (c), (4) and 99 (1) (a) of the ELRA on one
hand, and rules 19 and 21 of the Code on the other.
(v) Where there are allegations of unfair termination, the burden of proof that
the termination complained of was fair, lies on the employer, and that is why, in
labour disputes it is the employer who starts to give evidence, though, a
respondent, unlike in other civil matters and even criminal cases, where a party
initiating the proceedings starts to adduce evidence and then a party sued comes
next.
Cases referred to
(1) Tanzania Pharmaceutical Industries Limited v. Dr. Ephraim Njau
(Number 1), [1999] T.L.R. 255.

(1) Rule 4 (2) of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, Government Notice No. 67 of 2007;
(2) Sections 37 (1), (2) (a) (c), (4) of the Employment and Labour Relations
Act [Cap. 366 R.E. 2019];
(3) Section 99 (1) (a) of the Employment and Labour Relations Act [Cap. 366
R.E. 2019];
67
(4) Rules 19 and 21 of of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, Government Notice No. 67 of 2007;
(5) Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules 2009; and
(6) section 12 of the Labour Institutions Act, [Cap 300 R.E. 2019]
(7) Section 86 (3), (4) and (7) of the Employment and Labour Relations Act
[Cap. 366 R.E. 2019]; and
(8) Section 14 (1) (a) and (b) (i) of the Employment and Labour Relations Act
[Cap. 366 R.E. 2019]
Mr. Malongo and Ms. Kivuyo, for Appellant

Mr. Geneya, Respondent

22nd July, 2022
GALEBA, J.A.: Paschary Andrew Stanny, the respondent, was employed by

Bulyanhulu Gold Mines Limited, the appellant on 31st January 2008. He was
employed to work in the appellant's Underground Mining Department at Kakola
in Kahama, initially as a Mining Trainee. He was promoted from that original
title to Miner 1, Miner 2, Miner 3 and his last position with the appellant was
Scoop Operator at the time he was terminated on 31st January, 2019. His
termination was due to ill health following impaired hearing capacity of his right
ear.
Before employment, the respondent had to undergo a pre- employment
occupational medical examination and during the course of employment, the
appellant was to undergo a series of periodic occupational medical examinations
to ensure his physical fitness for the job at all material time of his employment.
The former test was carried out on the day he was employed, that is, on 31st
January 2008 as per the medical examination form at page 503 of the record of
appeal, where the respondent was found with normal hearing in the left ear and
reduced hearing in his right ear.
The medical examiner's recommendation following the above results are found
at page 505 of the record of appeal, at line 22 as follows:
68
Should avoid prolonged noise environment. [Emphasis added]
As indicated above, the respondent was nonetheless recruited and assigned work.
However, nine years later, following the respondent's own complaints of hearing
problems and through the appellant's routine medical checks, in 2017 the
respondent was allowed to attend various experts at various medical institutions
including Excellence in Hearing Care and Regency Medical Center to check him
and if possible, provide medication to the respondent's right ear. Later the matter
was escalated to the Occupational, Safety and Health Agency (OSHA) which
later sent the respondent to Muhimbili National Hospital (MNH) for various ear
tests. On 23rd July 2018, MNH experts wrote a letter of reference number
MNH/ENT/PL/VOL.11/215 to OSHA. The letter was signed by Dr. Shabani
Mawala and Dr. Perfect Kishevo both being Ear, Nose and Throat (ENT)
specialists. Further, on 5th January 2019 the appellant requested for a
comprehensive report in respect of the respondent's ill health status and
addressed it to the above ENT specialists. The reply to that letter (of 5th January
2019 from the appellant) is contained in the Patient Feedback Form contained at
page 450 of the record of appeal. In that feedback form, the doctors referred the
appellant on their earlier report of 23rd July 2018 addressed to OSHA.
In the meantime, on 3rd November, 2018, OSHA wrote a letter to the respondent
and copied it to the appellant confirming that the respondent's disease was not
work related since he was recruited with the sickness he was complaining of.
On 31st January 2019, the appellant terminated the respondent on grounds of ill
health. The respondent challenged the termination as unfair to the Commission
for Mediation and Arbitration at Shinyanga (the CMA) in Labour Dispute No.
CMA/SHY/KHM/16/2019. As per the CMA form No. 1, the respondent prayed
for reinstatement because procedures for terminating him were not followed and
the reason for doing so was unfair. Consequently, the matter was tried and at the
end the CMA found that the respondent’s termination was, indeed unfair. It
ordered the appellant to pay the respondent a total of TZS. 157,519,473.6 being
TZS. 123,022,686.6 which was 36 months salaries as compensation for the
unfair termination and TZS. 34,496,787 as insurance relief for the incapacity.
This decision of the CMA deeply aggrieved the appellant, who lodged Labour
Revision No. 8 of 2020 to the High Court of Tanzania Labour Division at
Shinyanga to challenge her defeat. Nonetheless, the application was dismissed
after the latter court indicated that it did not find any lawful reason to fault the
decision of the CMA. The appellant was further aggrieved by the dismissal of
69
her application for revision, hence the present appeal which is based on the
following six (6) grounds of appeal:
1. The learned High Court Judge erred in law for
upholding the award of the Commission for
Mediation and Arbitration which did not conduct
mediation of the dispute before the matter was
referred to arbitration.
2. To the extent that there was no certificate stating
whether or not the dispute had been settled by the
mediator, the learned High Court Judge erred in law
for upholding the award of the Commission for
Mediation and Arbitration.
3. The Learned High Court Judge erred in law in failing
to hold that the Commission for Mediation and
Arbitration had no jurisdiction to determine matters
related to insurance laws.
4. To the extent that the insurer was not heard, the
Learned High Court Judge erred in law in upholding
the award of payment of insurance benefit.
5. The learned High Court Judge misapplied the laws
governing termination on grounds of incapacity
arising out of ill-health.
6. The Learned High Court Judge erred in law in
relying on the findings of Muhimbili Hospital
doctors instead of OSHA findings.
When this appeal came up for hearing on 8th July 2022, Mr. Faustin Anton
Malango teaming up with Ms. Caroline Lucas Kivuyo both learned advocates,
were appearing for the appellant, whereas Mr. Gervas Geneya also learned
advocate, was for the respondent. They both prayed to adopt their written
submissions which had been filed for the appellant and the respondent with the
Court under rule 106 (1) and (7) of the Tanzania Court of Appeal Rules 2009,
(the Rules) respectively.
Before submitting on the 1st and 2nd grounds of appeal, which he indicated that
he would argue together, Mr. Malango contended that the two grounds raised
issues of law which this Court has jurisdiction to entertain, even though they had
70
not been raised or discussed in the High Court. To support his position, he cited
the case of Tanzania Pharmaceutical Industries Limited v. Dr. Ephraim Njau
(Number 1), [1999] T.L.R. 255. Although Mr. Geneya objected, seeking to
distinguish the above decision, we do not agree with him. The position of the
law is that a point of law need not be discussed in any court below before it can
be raised on appeal. The position is deeply rooted in this jurisdiction such that
we cannot get into parties' deliberations at any further depth, suffice it to hold
that, Mr. Malango was right and we will entertain the 1st and 2nd grounds of
appeal, although they were not raised, discussed or even decided upon by the
High Court. We will then go straight to the arguments of counsel for and against
the issues raised in those grounds.
Mr. Malongo's complaints in grounds 1 and 2 are; first, that mediation as a
mandatory process to be engaged along the timeline of a Labour Dispute at the
CMA, was in this case, skipped, which according to him was unlawful. His
second complaint was that, there was no properly filled in Certificate of
Settlement/Non-Settlement provided for under rule 34 (1) of the Employment
and Labour Relations (General), Regulations, Government Notice No. 47 of
2017. He also referred us to section 86 (3), (4) and (7) of the Employment and
Labour Relations Act [Cap. 366 R.E. 2019] (the ELRA), in cementing his point
that if mediation does not fail first, the arbitrator has no jurisdiction to carry out
arbitration hearing of a labour matter. In the circumstances, Mr. Malango
impressed on us to hold that mediation being a compulsory process in the labour
dispute resolution mechanism established under our laws, the arbitrator of the
CMA who upheld the respondent's claims had no jurisdiction to handle the
matter. He, accordingly, implored us to nullify the proceedings and the award of
the CMA and also the decision of the High Court because in any event the valid
revision could not have proceeded from a nullity.
In reply, Mr. Geneya, submitted both in his written submissions and orally before
us that because there is included in the record of appeal, a Certificate of Non
settlement of the dispute at page 545 of the record of appeal, mediation was
conducted and the same failed. He beseeched us to dismiss the 1st and 2nd grounds
of appeal.
We have thoroughly considered the contending arguments of parties, and we
think the appropriate point to start from, is to expound the mandate of the CMA.
As a judicial body, the CMA is established by section 12 of the Labour
Institutions Act, [Cap 300 R.E. 2019] (the LIA). The relevant functions of the
71
CMA are provided for in section 14 (1) (a) and (b) (i) of that Act, which provides
that:
14,- (1) The functions of the Commission shall be
to-
(a) mediate any dispute referred to it in
terms of any labour law;
(b) determine any dispute referred to it by
arbitration if-
(i) a labour law requires the
dispute to be determined by
arbitration;
(ii) and
(iii) N/A [Emphasis added]
Due to the nature of the disparity of the parties, positions as regards these first
two grounds of appeal, in our view the issue for us to resolve is whether a
reference of the matter to arbitration in the circumstances, was unlawful.
Resolving that issue will not consume a lot of our time because according to the
Notice to Refer a Dispute to Arbitration which is contained at page 546 of the
record of appeal, it is shown at line 8 that it was filed by the respondent who was
the complainant at that time under section 86 (7)(b)(i) of the ELRA, which
provides that:
(7) Where the mediator fails to resolve a dispute within
the period prescribed in subsection (4), a party to
the dispute may-
(a) N/A;
(b) if the dispute is a complaint-
(i) refer the complaint to arbitration; or
(ii) N/A. [Emphasis added]
Subsection (4) of section 86 of the ELRA which is referred to above in sub

section (7) provides for the time limit within which the mediator must complete
resolution of the dispute by mediation. That subsection provides that:
(4) Subject to the provisions of section 87, the mediator
shall resolve the dispute within thirty days of the
72
referral or any longer period to which the parties
agree in writing. [Emphasis added]
We will then determine whether there was justification for the respondent to
have invoked section 86 (7) (b) (i) Of the ELRA to present his complaint to
arbitration without first having to exhaust the mediation process. In this matter,
according to the records of the CMA, particularly at page 14 of the record of
appeal, it is clear that the matter was called for the first time before the mediator
on 5th March, 2019. The record has it at page 15 that the matter was called again
before another mediator, on 14th March, 2019. It appears, however, that up to
10th April 2019 when the Notice to Refer a Dispute to Arbitration was presented,
the matter had not been mediated by the mediator since 5th March, 2019 when it
was first called for mediation. So, under section 86 (7) (b) (i) of the ELRA the
respondent referred the matter to arbitration because since when the matter was
slated for mediation 30 days lapsed without the said mediation being concluded
as required by section 86 (4) of the ELRA. We therefore, find nothing offensive
of any law by the respondent presenting his complaint to arbitration as he did,
unless Mr. Malango was submitting that mediation had succeeded before 10th
April 2019, which we are certain, was not his argument, because we understood
him as complaining that there was no evidence that mediation was conducted by
the time arbitration started, which is why the complainant referred the matter to
arbitration under the above provision of the law.
It is true however, that generally and in the normal course of labour dispute
resolution legal processes, mediation is necessary under rule 4 (2) of the Labour
Institutions (Mediation and Arbitration Guidelines) Rules, Government Notice
No. 67 of 2007, (the Mediation and Arbitration Rules), but we hasten to add that,
it is not in every circumstance, that mediation has dogmatically to precede
arbitration. There are exceptions to rule 4 (2) of the Mediation and Arbitration
Rules, for the rule is not Scripture. One of such exception is where a mediator
does not, in thirty (30) days, complete a mediation as provided under section 86
(4) of the ELRA, in which case a complainant may refer his complaint to
arbitration under section 86 (7) (b) (i)of the ELRA, as it happened in this case.
Another exception is contained at rule 6 (l) and (2) of the very Mediation and
Arbitration Rules. That rule provides:
6 -(1) The Commission may refer a dispute to
arbitration before it has been mediated or set
down for mediation and arbitration hearing on the
73
same date. In contemplating this, the Commission
may consider the following.
(a) The consequences of any delay in the
mediation process;
(b) The prospects of settlement at mediation;
(c) The effective utilization of the Commissions
resources;
(d) The interests of the parties; and (e) The
public interests generally.
2. Parties may agree to submit a dispute to arbitration.
[Emphasis added]
That is to say there are circumstances where a labour dispute may go to

arbitration straight without necessarily having to be mediated first. That said, we
find nothing alarming for the matter between the parties having been entertained
at arbitration without any clear order declaring failure of the mediation
particularly in circumstances where mediation was not concluded in thirty (30)
days, as required by section 86 (4) of the ELRA. In the circumstances, the 1st and
2nd grounds of appeal are without merit and we accordingly dismiss them.
Before we proceed, we wish to observe that after hearing this appeal on 8th July
2022 and retired for deliberations, we entertained queries that needed
clarification from learned advocates pertaining to documentation in respect of
the issues of group health insurance and also the medical guidance that the
appellant obtained in terms of rule 19 (3) of the Employment and Labour
Relations (Code of Good Practice) Rules, 2007 (the Code), before she could
terminate the respondent on grounds of ill health. So, we recalled counsel for
both parties and they duly appeared before us for the second time oh 15th July
2022. We are grateful to them for their valuable additional submissions on the
issues posed. The substance of their clarification has assisted us abundantly in
the course of composing this judgment.
Considering the scheme and setup of this appeal in terms of the grounds raised,
we find it more coherent and logical for the time being to shelf the 3rd and 4th
grounds of appeal which have a lot to do with insurance claims, and first tackle
the 5th and the 6th, because determination of the latter two grounds, particularly
the 5th, might provide us a definite way forward which may not necessitate
coming back to the 3rd and the 4th grounds.
74
So, we will move to the 5th and 6th grounds, which were argued by Ms. Kivuyo
under rule 106 (10) (a) of the Rules. In those grounds the complaints of the
appellant were twofold; one, was that the learned High Court Judge misapplied
or did not apply properly the laws governing termination of employment by an
employer on grounds of health of an employee. Two, the learned High Court
Judge was wrong to have taken the opinion of the MNH experts as more credible
than that of OSHA, on the point whether the respondent's illness was work
related or not.
In elaborating the two points above, the learned advocate referred us to exhibits
K10 and K11 which were letters from OSHA one dated 3rd November 2018 and
another dated 25th March 2019 at pages 68 and 78 of the record of appeal
respectively. According to Ms. Kivuyo exhibit K10 is a more credible report
showing that the respondent's disease was not work related because OSHA had
a historical background of the respondent unlike the NMH experts who did not
have any background medical information of the respondent. She submitted that
MNH experts' opinion that the respondent1s illness was work related was based
on a misleading information received from the patient when he met the doctors.
She insisted therefore that the respondent's disease was not work related as
opined by OSHA in exhibit K10 as well as OSHA's explanation in its letter to
PEMA advocates, exhibit K11. Ms. Kivuyo's effort was to convince us that the
6th ground of appeal ought to be allowed, because OSHA was the right institution
with the right information backed with the historical background of the patient
unlike the medical doctors at MNH, which was a general hospital.
In respect of the 5th ground of appeal, when the learned counsel were recalled on
15th July, 20221 based on a. query we posed as to which opinion of the registered
medical practitioner that guided the appellant to terminate the respondent on
grounds of ill health, as required by rule 19 (3) of the Code, Ms. Kivuyo
contended that the appellant in terminating the respondent was guided by the
opinion of the ENT specialists contained in the letter dated 23rd July 2018. She
moved the Court to allow the 5th ground of appeal that, termination of the
respondent, in the circumstances, was legally justified.
In reply to the 5th and 6th grounds, Mr. Geneya submitted that the respondent was
exposed to extreme noisy environment underground where he worked for over
6 years, which according to him, contributed to his hearing capacity deterioration
in the right ear. He referred us to page 35 of the record of appeal where the
respondent testified that he was working in environment of extreme noise. Other
75
than the above, Mr. Geneya kept on referring us to the judgment of the High
Court, to support his position while that was the very decision that the appellant
was challenging in these proceedings. That remained his trend of argument
despite our frequent interventions. Nonetheless, we understood Mr. Geneya's
position to be that, the learned High Court Judge properly interpreted the relevant
laws necessary for termination of employment based on ill-health, He finally
implored the Court to dismiss the 5th and 6th grounds of appeal.
We have thoroughly studied the record of appeal and properly understood the
arguments of counsel for the parties, particularly after they reappeared before us
on 15th July 2022.
The hotly contested matter in the 6th ground of appeal was whether the
respondent's illness was work related or not. On this specific issue we agree with
Ms. Kivuyo that the proper report to go with is that of OSHA and not that of
MNH experts. And we will explain why. It is because, as submitted on behalf of
the appellant, OSHA's opinion is backed by the appellants' diagnostic report
which was prepared on 31st January, 2008 whereas the MNH experts' comment
on that aspect was based on the oral information from the respondent which was
indeed misleading. That is so because, the MNH report of 23rd July, 2018 states
that the historical background was received from the patient So, we do not agree
with Mr. Geneya that the right report to attach more credence on the aspect of
whether the illness was work related or not is the one from MNH. It is that of
OSHA dated 3rd November, 2018. Thus, we find merit in the 6th ground of
appeal and we allow it, to that extent.
We will now move to the 5th ground of appeal in which we think, the major issue
for us to determine in this appeal is whether the reason for termination of the
respondent on grounds of ill-heath was valid or it was not. We will start with
substantive fairness and if we will find that the ground for termination was valid,
then we will proceed to determine whether the procedure to carry out the
termination was legally complied with.
The law relevant for termination of employment based on ill health is contained
in sections 37 (1), (2) (a) (c), (4) and 99 (1) (a) of the ELRA on one hand, and
rules 19 and 21 of the Code on the other. There is also section 39 of the ELRA,
on the burned of proof. Section 37 (1), (2) (a) (i), (4) and 99 (1) (a) of the ELRA
provide as follows:
76
37 (1) It shall be unlawful for an employer to terminate
the employment of an employee unfairly.
(2) A termination of employment by an employer is
unfair if the employer fails to prove-
(a) that the reaso11 for the termination is valid;
(b) N/A
(c) that the employment was terminated in
accordance with a fair procedure.
(4) In deciding whether a termination by an employer is
fair, an employer, arbitrator or Labour Court shall
take into account any Code of Good Practice
published under section 99. [Emphasis added]
Section 39 of the ELRA, provides that:

39. In any proceedings concerning unfair
termination of an employee by an employer, the
employer shall prove that the termination is fair.
The above section, comes out clearly that where there are allegations of unfair
termination, the burden of proof that the termination complained of was fair, lies
on the employer, and that is why, in labour disputes it is the employer who starts
to give evidence, though, a respondent, unlike in other civil matters and even
criminal cases, where a party initiating the proceedings starts to adduced
evidence and then a party sued comes next.
Section 99 (1) (a) of the ELRA provides that in respect of all types of
terminations, the provisions of the Code must be observed. In this respect, we
indicated earlier on that the relevant provisions of the Code for our purposes are
rules 19 and 21 which provide for substantive aspects of termination on account
of ill health and procedural compliances to carry out termination of sick
employees. Rule 19 provides for measures to be taken if a termination is to be
deemed substantively fair based on ill health and rule 21, prescribes for the
appropriate procedure to implement the spirit of rule 19 of the Code. We will
start with rule 19 (1), (2) and (3), which provides that:
19 –(1 ) An employer who is considering to terminate an
employee on grounds of ill health or injury shall take
77
into account the following factors to determine the
fairness of the reason in the circumstances .·-
(a) The cause of the incapacity;
(b) The degree of the incapacity;
(c) The temporary or permanent nature of the
incapacity;
(d) The ability to accommodate the incapacity;
(e) The existence of any compensation or pension.
(2) Where an employee is injured at work or is
incapacitated by a work- related illness (the cause),
an employer shall go to greater lengths to
accommodate the employee (the ability to
accommodate).
(3) The employer shall be guided by an opinion of a
registered medical practitioner, in determining
the cause and degree of any incapacity and
whether it is of a temporary or permanent nature.
[Emphasis added]
In our opinion, particularly in view of the contest between the learned advocates
for the parties, the most relevant subrule of rule 19, is sub rule (3) of the Code.
The rule requires an employer who wishes to terminate an employeeto be guided
by an opinion of a registered medical practitioner. A registered medical
practitioner is defined, under section 3 of the Medical, Dental and Allied Health
Professionals Act, No. 11 of 2017 (the Medical Professionals Act) as:
a person holding a degree, advanced diploma, diploma or
certificate in medicine or dentistry from an institution
recognized by the Council with his level of competency
and registered, enrolled or enlisted to practice as such
under this Act.
As indicated above, Ms. Kivuyo submitted that the opinion of the medical
practitioner that the appellant relied upon to terminate the respondent is a report
from MNH dated 23rd July 2018, exhibit PAS 2, contained at page 451 of the
record of appeal. Indeed, the report was composed by Dr. Shabani Mawala and
Dr. Perfect Kishevo both ENT specialists. There was no contest from Mr.
Geneya that these doctors were not registered medical practitioners within the
78
meaning of section 3 of the Medical Professionals Act. We will therefore take it
that the two medical doctors from MNH who issued the report on 23rd July 2018,
were indeed registered medical practitioners with ability to render a credible
opinion for guidance of employers in terms of rule 19 (3) of the Code.
As we proceed, there is one significant point that underlies the approach we are
destined to take in resolving the issue we earlier framed in order to resolve the
5th ground of appeal. The point is that, termination of an employee on grounds
of ill health unlike other kinds of terminations depends on a scientific guidance
from medical experts. The issue of sickness is a question of medical science. It
is not a question of human resource. And we think that is why the termination
based on ill health is subjected by law to guidance of an opinion of a registered
medical practitioner.
Going forward, we think it is opportune at this juncture to determine whether the
appellant in terminating the respondent was indeed, guided by the opinion of the
medical practitioners contained in the letter of 23rd July 2018. That letter from
MNH experts had medical test results and recommendations, this is what
MNHENT specialists found out and recommended at page 451 of the record of
appeal:
Definitive Diagnosis:
Right ear; moderately severe hearing loss. Left ear;
normal hearing.
Prognosis:
Permanent impairment Impairment:
(a) Permanent incapacity 50%.
Recommendations:
History, physical examination and investigation
evaluation are in agreement with work related right ear
moderately severe hearing loss. We recommend the
company to do the following for the betterment of the
patient ·
■ Job relocation to a noise free environment;
■ Use of hearing protective devices (ear plugs, ear
muffs);
■ Use of hearing aid on the right ear
■ He needs follow up every 3 months. [Emphasis
added]
79
The reason we have reproduced the above medical findings and
recommendations, we are looking for guidance of the medical practitioners that
the appellant followed to terminate the respondent. In our view, the guidance
given in that letter is for the company to carry out the four bullet points, including
to place the respondent in a place of work which is noise free. We do not read
anything in that letter indicating that the respondent is incapable of working, and
that is why the medical practitioners suggested relocating the appellant in a place
of work which is noise free and use some medical safety gears. In our considered
view, in terminating the respondent the appellant was not guided by the opinion
provided by the medical experts as required by the Code.
On 15th July 2022 Ms. Kivuyo informed us that they also had a meeting on 16th
June 2019, which was attended by one Dr. Nickson Ismail Nkya who also gave
evidence on behalf of the appellant as DW1. She was attempting to convince us
that because Dr. Nkya participated in the meeting that resolved to terminate the
respondent then, the termination was based on a medical opinion, of this medical
doctor who was working at the mine. There are two reasons why we cannot take
her argument seriously. One, at page 24 of the record of appeal, when adducing
his evidence in the CMA, Dr. Nkya stated that he was not a specialist and that
he was not an ENT specialist. He also confirmed that at the mine site there was
no medical doctor who was a specialist in ENT as a branch of medical science.
That is presumably why the appellant had to seek advice from OSHA and MNH.
Two, Ms. Kivuyo herself told us that the right opinion that the appellant was
guided by, is contained in the letter of 23rd July 2018 whose recommendations
we have quoted above. So, we take it that other than the opinion of the 23rd July
2018, there is no other opinion which guided the appellant to terminate the
respondent. But that is not all.
There was also a letter from OSHA. OSHA under the laws of Tanzania, is an
Executive Agency that was established under order 2 of the Executive Agencies
(The Occupational Safety and Health) Authority (Establishment)) Order 2001,
Government Notice No. 332 of 2001 (the OSHA Establishment Order).
Following its establishment, there was, two years later in 2003, enacted the
Occupational Health and Safefy Act No. 5 of 2003 (the OHSAct). The wide
strategic objective behind the OHS Act was to make provisions for maintenance
of safety, health and welfare of persons at work in factories and other work
places and to provide for the protection of persons other than persons at work
against hazards to health and safety arising out of activities of persons at work.
80
In this case OSHA, as indicated earlier on, was consulted, and it also gave its
feedback vide its letter dated 3rd November 2018. Due to the significance of that
letter we will quote it in full:
JAMHURI YA MUUNGANO WA TANZANIA OFISI
YA WAZIRI MKUU,
KAZI, VIJANA NA WATU WENYE ULEMAVU
Mamlaka ya Usalama na Afya, Mahali pa Kazi (OSHA),
P. 0. Box 519,
DAR ES SALAAM
Kumbu. Na. CBA.246/386/01D/51 3/11/2018
PASCAL ANDREW STAN
TITLE UNDERGROUND SCOOP OPERATOR
YAH: UTEKELEZAJI WA SHERIA YA USALAMA

NA AFYA MAHALI PA KAZI KUKAMILIKA KWA
ZOEZILA UPIMAJI AFYA BAADA YAAJIRA
Tafadhali rejea soma tajwa.
2. Kwa mujibu wa Sheria ya Afya na Usalama Mahali pa

Kazi Namba 5 ya mwaka 2003 kifungu cha 24 (2) Wakala
wa Usalama na Afya mahali pa kazi umekamilisha upimaji
wa afya yako baada ya ajira
(exit medical examination).
3. Katika upimaji huo yafuatayo yamebainika kuhusiana na
afya yako.
i. Una tatizo la kutosikia vizuri upande wa kulia
(Moderately Severe 20 SNHL). Tatizo hili
halijasababishwa na kazi uliyofanya katika kampuni ya
ACACIA ingodi wa Bulyanhulu kwa kuwa lilikuwepo
tangu ulipoanza kazi
4. Hivyo basi, unashauriwa kupata matibabu na ushauri
katika hospitali iliyopo karibu nawe kwa taratibu za
Wizara yenye dhamana ya masuala ya afya.
5. Majibu ya vipimo husika yameambatanishwa.
Dkt Edwin M. Senguo sgd
Dkt Agnes Warioba sgd.
81
Kny. MTENDAJIMKUU
Nakala:
MENEJA MKUU
KAMPUNI YA UCHIMBAJI MADINI YA ACACIA,
S.L P. 1081,
DAR ES SALAAM.
The findings and recommendations in the above letter were made pursuant to the
powers derived from section 24 (2) of the OHS Act, according to the letter itself.
OSHA's findings and recommendations were coincidentally supplemental to the
findings of the MNH doctors in their letter dated 23rd July, 2018 which we
discussed above. According to OSHA’s letter there are two points of critical
significance to note; One, there are two findings as regards the respondent's
diminished hearing capacity at· item 3 (i) of the letter. The first finding is that
the respondent had impaired hearing ability in his right ear and; the second was
that such medical condition was not caused or related to works at the appellant's
work place because at the time he was hired, that is on 3rd January, 2008, the
respondent had the same problem.
Two, there is, in that letter at item 4, OSHA's recommendation to the employee
following the above findings. OSHA, advised the respondent to continue with
treatment and to receive medical advice from appropriate hospitals in terms of
existing guidelines of the ministry responsible for health affairs.
It appears also that one law firm called PEMA Advocates, on behalf of the
respondent, wrote a letter to OSHA, demanding clarification of what did its letter
dated 3rd November 2018 quoted above mean, in terms of whether the
respondent's disease was work related or it was not. On 25th March 2019, OSHA
responded to those lawyers vide its letter, exhibit K11 included in the record of
appeal at page 78, clarifying the point. At item 3 of that letter line 27 to 30 on
that page OSHA, clarified thus:
13...Hali ya Bw; Pascal ilionekana kuwa hasikii vizuri
upande wa kulia, hali ambayo ipo sawa sawa na vipimo
vi/ivyofanyika wakati wa kuanza ajira yake 2008. Mwaka
2018, Hospitali ya Taifa Muhimbili nayo imetoa vipimo
82
hivyo hivyo husika swa/a la masikio yake. Tafadhali fanya
upembuzi yakinifu wa taarifa zote.[Emphasis added]
OSHA’s finding is that the medical condition, that is the extent of the
respondent1s hearing impairment at the time the respondent was employed on
31st January, 2008, is exactly the same medical condition, as at the time of
OSHA's report, on 3rd November, 2018.
What the above means is that the respondent’s medical condition at the time of
his recruitment in 2008 was the same as the medical condition at the time of his
termination over ten years later in 2009. That is as per OSHA. If that is the case,
why would then he be terminated for medical Reasons? In other words, if his
medical condition has always been the same throughout from 2008 to 2019, why
terminate him for a medical condition that he had on the day of his recruitment?
OSHA stated in exhibit Kl1 among other statements that “Napenda kukujulisha
kuwa taarifa zote zitolewazo na OSHA ni taarifa za kitaalam vile vile zipo
kisheria”. The report that OSHA is making reference to is that dated 3rd
November, 2018. The latter report is the one which says, the respondent's
medical condition at start and finish was the same.
That is particularly where, we are honestly entertaining difficulty when trying to
agree with Ms. Kivuyo, that there were any valid medical reasons for the
termination of the respondent1s employment. We also took some time to study
the matter, in the context of guidance from registered medical practitioners
above. Both the MNH and OSHA were at concurrence on the way forward. The
ENT experts from MNH advised the appellant to place the respondent at a work
place with no excess noise and apply protective medical devices and to continue
with medical check-ups every three months. On her part, OSHA made the same
recommendation in its letter of 3rd November 2018, where she opined thus:
“Hivyo basi, unashauriwa kupata matibabu na ushauri katika hospitali iliyopo
karibu nawe kwa taratibu za Wizara yenye dhamana ya masuala ya afya.” In
our view, like the MNH experts, OSHA did not find any reason to opine that the
respondent be terminated, because there was no proved scientific worsening of
the respondent's medical condition between 2008 and 2018, otherwise OSHA
83
would have advised that the respondent be terminated because of his deteriorated
medical condition.
Both recommendations of MNH experts and that of OSHA, on the way forward
regarding the employment of the respondent is complemented by the provisions
of clause 8 of the respondent's employment contract dated 31stJanuary, 2008
which is included in the record of appeal at page 468. That clause of the
agreement states:
“8. Medical Benefits.
"For the duration of your employment with the Company you
will be entitled to medical cover for yourself, one spouse and
four registered dependents. The company will select the most
appropriate medical scheme which could change from time to
time.”
This clause took into account that the respondent may feel unwell whether from
fresh contracted diseases or worsening of his existing medical condition which
was known to the appellant at recruitment. For the above reasons, the appellant
failed to discharge the burden of proof placed on her by section 39 of the ELRA,
of proving that the reason for terminating the respondent was valid. We therefore
find no substantiated valid reason, for termination of the respondent if the basis
was ill health. Hence, we find no merit in the 5th ground of appeal and we
accordingly dismissed it.
Having made a finding, that there was no substantive valid reason for terminating
the respondent, we find no meaning in discussing whether or not the procedure
for termination was lawful. That would be seeking to establish whether a
procedure to carry out an illegal process was lawful. That, we cannot do.
Further, having found that the termination based on ill health was not proved,
then the reliefs hinged on health insurance on termination (which were not even
claimed in CMA F1) cannot arise which means the respondent is not entitled to
the insurance award of TZS. 34,496,787.00 by the CMA. In that same context,
deterrnining the 3rd and 4th grounds would be seeking to achieve nothing. We are
therefore not going to resolve the grounds.
84
That said and done, this appeal is partly successful and partly dismissed. The
decision of the CMA and that of the High Court are reversed such that the
appellant is hereby ordered to reinstate the respondent in terms of section 40 (1)
(a) of the ELRA while observing the medical recommendation made by her
medical experts when they examined the respondent at the time of his
recruitment on 31st January, 2008. We make no order as to costs.
CELESTINE SAMORA MANASE & TWELVE OTHERS v.

TANZANIA SOCIAL ACTION FUND & ATTORNEY GENERAL
AT DAR ES SALAAM
(NDIKA, KITUSI, and RUMANYIKA. JJA.)
(Appeal from the Ruling and Order of the High Court of Tanzania, Labour
Division at Dar es Salaam, Wambura, J. dated the 21st day of June, 2019 in
Miscellaneous Labour Application No. 13 of 2019)
Interlocutory order – Ruling of the High Court setting aside an ex parte

judgment of the same Court - Whether an appeal lies against the decision of the
High Court setting aside its ex parte judgment -Section 5 (2) (d) of the Appellate
Jurisdiction Act, [Cap. 141 R.E. 2019]
By this appeal, the appellants sought to assail the ruling of the High Court of
Tanzania, Labour Division, Dar es Salaam dated 21st June, 2019 in
Miscellaneous Labour Application No. 13 of 2019 setting aside an ex parte
judgment of that court dated 13th May, 2016 in Miscellaneous Labour
Application No. 218 of 2015. At the inception of hearing of the appeal the Court
drew the attention of the parties to a threshold issue: whether an appeal lies
against a decision of the High Court setting aside its ex parte judgment.
85
Held: (i) Section 5 (2) (d) of the Appellate Jurisdiction Act, [Cap. 141 R.E.
2019] has been consistently construed by the Court as having the effect of
barring any appeal or application for revision against any preliminary or
interlocutory decision or order of the High Court which does not have the effect
of finally and conclusively determining the "suit" before the High Court.
(ii) Section 57 of the Labour Institutions Act, 2004 Cap. 300 creates a right of
appeal to this Court on a point of law against any decision of the High Court,
Labour Division. However, section 57 does not have the effect of permitting
appeals in labour matters to this Court against preliminary or interlocutory
decisions. The provision does not override or supersede the peremptory
proscription under section 5 (2) (d) of the Appellate Jurisdiction Act, [Cap. 141
R.E. 2019].
Appeal struck out
Cases referred to
(1) Paul A. Kweka & Another v. Ngorika Bus Services and Transport Co.
Ltd., Civil Appeal No. 129 of 2002;
(2) Peter Noel Kingamkono v. Tropical Pesticides Research, Civil
(3) Murtaza Ally Mangungu v. The Returning Officer of Kilwa & Two
Others, Civil Application No. 80 of 2016;
(4) JUNACO (T) Ltd. & Another v. Harel Mallac Tanzania Limited, Civil
Application No. 473/16 of 2016; and
(5) Augustino Masonda v. Widmel Mushi, Civil Application No. 383/13 of
2018;
(6) Blueline Enterprises Limited v. East Africa Development Bank, Civil
Application No. 103 of 2003; and
(7) Tanzania Motor Services Ltd. & Another v. Mehar Singh t/a Thaker
Singh, Civil Appeal No. 115 of 2005
(8) Tanzania Posts Corporation v. Jeremiah Mwandi, Criminal Appeal No.
474 of 2020.

(1) Section 5 (2) (d) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2019];
(2) Section 57 of the Labour Institutions Act, 2004 Cap. 300;
(3) Rule 38 (2) of the Labour Court Rules, 2007sss;
86
(4) Section 94 (1) (e) and (f) of the Employment and Labour Relations Act,
2004 (now Cap. 366 R.E. 2019); and
(5) Order IX, rule 13 of the Civil Procedure Code, [Cap. 20 R.E. 2002] (now
Cap. 2019).
Messrs. Rweyemamu and Mbakileki, for Appellants

Mses. Mtae, and Njoka, Senior State Attorney and Ms. Kileo, State Attorney,
for Respondent

24th February, 2022
NDIKA, J.A.: By this appeal, the appellants sought to assail the ruling of the
High Court of Tanzania, Labour Division at Dar es Salaam (Wambura, J.) dated
21st June, 2019 in Miscellaneous Labour Application No. 13 of 2019 setting
aside an ex parte judgment of that court (Mipawa, J.) dated 13th May, 2016 in
Miscellaneous Labour Application No. 218 of 2015. At the inception of hearing
of the appeal before us on 18th February, 2022, we drew the attention of the
parties to a threshold issue: whether an appeal lies against a decision of the High
Court setting aside its ex parte judgment.
The foregoing question arises as follows: the appellants, who were
employees of the Tanzania Social Action Fund ("TASAF" or simply "the first
respondent"), instituted Miscellaneous Labour Application No. 218 of 2015 in
the High Court against the first respondent along with the Attorney General ("the
second respondent") as the necessary party seeking a determination whether
under the existing labour legislation parties to a labour dispute could refer their
dispute to an independent arbitrator as per their agreement instead of referring it
to the Commission for Mediation and Arbitration. It occurred that the hearing
of the matter proceeded ex parte before Mipawa, J., the learned Judge explained
and justified that approach in his ex parte judgment, at page 36 of the record of
appeal, as follows:
The hearing of the application went on ex parte and by way
of written submissions after the respondents/ namely (to
wit) TASAF and the Attorney General defaulted
appearance (by failing to file) counter affidavit regardless
87
of the fact that they were served by the applicants and it is
also noted from the record that the respondents'
representatives were appearing in court but did not file
counter affidavit.
Having considered the appellants' submissions, the learned Judge granted the
application holding that in terms of the Employment and Labour Relations Act,
2004 (now Cap. 366 R.E. 2019) ("the ELRA'') and the Labour Institutions Act,
2004 (now Cap. 300) ("the LIA") the parties could refer their dispute to an
independent arbitrator of their choice in line with the terms of the agreement
between them.
Resenting the aforesaid outcome, the respondents successfully moved the
court (Wambura, J.) essentially pursuant to rule 38 (2) of the Labour Court
Rules, 2007 and section 94 (1) (e) and (f) of the ELRA to set aside the aforesaid
ex parte judgment on the ground that the respondents had a good cause for not
appearing before Mipawa, J. on the appointed date and that they had notified the
court in advance of their inability to attend the hearing.
Before us Messrs. Novatus Rweyemamu and Bernard Mbakileki, learned
counsel, appeared on behalf of the appellants. For the respondents, Mr. Charles
Mtae, learned State Attorney, appeared along with Mr. Gerald Njoka and Ms.
Kause Kilonzo, learned State Attorneys.
It is vital and logical to begin our determination of the issue at hand by
reproducing section 5 (2) (d) of the AJA:
(2) Notwithstanding the provisions of subsection
(1)-
(a) to (c) [Omitted]
(d) no appeal or application for revision shall lie against or
be made in respect of any preliminary or interlocutory
decision or order of the High Court unless such decision
or order has the effect of finally determining the suit.
[Emphasis added]
The above provision has been consistently construed by the Court as having the
effect of barring any appeal or application for revision against any preliminary
or interlocutory decision or order of the High Court which does not have the
effect of finally and conclusively determining the "suit” before the High Court -
88
see, for instance, Paul A. Kweka & Another v. Ngorika Bus Services and
Transport Co. Ltd., Civil Appeal No. 129 of 2002; Peter Noel Kingamkono v.
Tropical Pesticides Research, Civil Application No. 2 of 2009; Murtaza Ally
Mangungu v. The Returning Officer of Kilwa & Two Others, Civil Application
No. 80 of 2016; JUNACO (T) Ltd. & Another v. Harel Mallac Tanzania Limited,
Civil Application No. 473/16 of 2016; and Augustino Masonda v. Widmel Mushi,
Civil Application No. 383/13 of 2018 (all unreported).
The term "suit" referred to in the above provision has been defined so
broadly to include any proceeding in a court of law in which a party is asserting
rights which are disputed by the other party. The modes of proceedings may be
diverse but the key feature is that the proceeding concerns an individual's pursuit
of a remedy which the law affords him - see Blueline Enterprises Limited v. East
Africa Development Bank, Civil Application No. 103 of 2003; and Tanzania
Motor Services Ltd. & Another v. Mehar Singh t/a Thaker Singh, Civil Appeal
No. 115 of 2005 (both unreported).
What, then, is a preliminary or interlocutory decision or order targeted by
section 5 (2) (d)? In JUNACO (supra), the Court, having referred to its earlier
decisions in Murtaza Ally Mangungu (supra) and Peter Noel Kingamkono
(supra), answered that question so aptly as follows:
In view of the above authorities, it is therefore apparent that
in order to know whether the order is interlocutory or not,
one has to apply the nature of the order test That is, to ask
oneself whether the [decision] or order complained of
finally disposes of the rights of the parties. If the answer is
in affirmative, then it must be treated as a final order.
However, if it does not, it is then an interlocutory order.
In view of the above exposition ·of the law, we have to determine two issues:
first, whether the matter before the High Court is a suit; and, if, indeed, it is a
suit, whether the impugned decision of Wambura, J., is interlocutory.
We begin with the first issue. We stated earlier that the appellants
instituted Miscellaneous Labour Application No. 218 of 2015 in the High Court
seeking a declaratory relief as to the manner of the arbitrability of their dispute
with the respondents as per the agreement between them. The outcome of this
matter was Mipawa, J.'s ex parte judgment. Arising from that application was
Miscellaneous Labour Application No. 13 of 2019 instituted by the respondents
89
for setting aside the ex parte judgment. It is undoubted that both matters are
proceedings in which parties were pursuing certain remedies. While the first
application was the main application, the second matter was an ancillary matter
arising from the first application. Thus, for the purpose of section 5 (2) (d) of the
Act, both matters were suits.
Coming to the second issue, we have no difficulty in answering it in the
affirmative. The impugned decision of Wambura, J. in the ancillary application
did not finally and conclusively dispose of the issues before the High Court
because by setting aside Mipawa, J.'s ex parte judgment, the court essentially
reopened the proceedings in respect of the main application for the parties to be
heard inter parties and the matter to be determined on the merits. Thus, the
question presented to that court by the parties on the manner of the arbitrability
of their dispute remained unresolved.
As a matter of fact, we are not treading on an uncharted terrain. In Paul
A. Kweka (supra), we held that an order granting an application pursuant to Order
IX, rule 13 of the Civil Procedure Code, [Cap. 20 R.E. 2002] (now Cap. 2019)
to set aside an ex parte judgement is not appealable. That holding, we think,
would equally apply to the impugned order, which, as indicated earlier, was
made under rule 38 (2) of the Labour Court Rules, 2007.
By way of emphasis, we wish to state that we are aware that section 57 of
the LIA creates a right of appeal to this Court on a point of law against any
decision of the High Court, Labour Division. However, as we elaborated in
Tanzania Posts Corporation v. Jeremiah Mwandi, Criminal Appeal No. 474 of
2020 (unreported) cited to us by Mr. Mtae, the aforesaid provision does not have
the effect of permitting appeals in labour matters to this Court against
preliminary or interlocutory decisions. Simply put, the aforesaid. provision does
not override or supersede the peremptory proscription under section 5 (2) (d) of
the Act. Perhaps, as we conclude it would be helpful to recall what we said in
Paul A. Kweka (supra) as the rationale of the bar to appeals against interlocutory
decisions:
Firstly, it promotes an expeditious administration of
justice, that is it ensures timely justice, at the same time
making access to Justice affordable, that is less costly.
Secondly, and more importantly, it affords both parties in
the case equal opportunity to be heard at the full trial.
90
All said, we are satisfied that the impugned decision granting the application to
set aside the ex parte judgment is not appealable. This appeal against the
aforesaid decision is, therefore, incompetent and we, accordingly, strike it out.
We make no order as to costs bearing in mind that this matter is a labour dispute
normally not amenable to awards of costs.
Appeal struck out
CHAMA CHA WAFANYAKAZI MAHOTELI NA MIGAHAWA

ZANZIBAR (HORAU) v. KAIMU MRAJIS WA VYAMA VYA
WAFANYAKAZI NA WAAJIRI ZANZIBAR
AT ZANZIBAR
(MWANGESI, KOROSSO and LEVIRA JJA.)
(Appeal from the decision of the High Court of Zanzibar, Industrial Division,
at Vuga, Sepetu. J., dated 17th August, 2018 in Misc. Civil Application No. 1 of
2017)
Locus standi - Appellant is a recognized trade union in terms of section 25(1) of
the Labour Relations Act, 2005 – Appellant instituted a labour dispute against
the respondent - Whether the appellant and not the Board of Trustees of the
appellant had locus standi to sue the respondent - Section 48 of the appellant's
Constitution.
This appeal is against the decision of the High Court of Zanzibar, Industrial
Division, in Miscellaneous Civil Application No. 1 of 2017 dated 17th August,
2018. In that application, the appellant had applied for the High Court to call for
and examine the records of proceedings of the respondent of 6th December, 2017
in which the respondent cancelled the appellant's registration for the purpose of
satisfying itself as to the correctness, legality and propriety of the respondent's
decision. Having heard both parties to the application the High Court Judge
91
found the application to be baseless and hence dismissed it. Aggrieved, the
appellant lodged the current appeal:
Held: (i) Locus standi is a common law principle which provides that, only a
person whose right or interest has been interfered with by another person has a
right to bring his claim to court against that other person. A person whose right
or interest has been interfered by another is able to come to the court personally
or through an authorised agent or board depending on the circumstances of each
case.
(ii) The appellant had no locus standi to sue the respondent because the
appellant's Constitution states categorically under Article 48 that, among the
functions of the appellant's Board of Trustees is to represent the appellant before
the court.
Appeal dismissed
Cases referred to
(1) Lujuna Shuhi Ballonzi, Senior v. Registered Trustees of Chama cha
Mapinduzi [1996] T.L.R. 203; and
(2) Godbless Jonathan Lema v. Mussa Hamis Mkanga & Two Others, Civil
Appeal No. 47 of 2012.

(1) Section 25(1) of the Labour Relations Act, 2005; and
(2) Section 47(c) of the Labour Relations Act, 2005
Mr. Msengi, for Appellant

Messrs. Hassan and Msafiri, Principal State Attorneys and Mr. Khalfani, State
Attorney, for Respondent

18th December, 2020
LEVIRA, J.A.: This appeal is against the decision of the High Court of
Zanzibar at Zanzibar (Sepetu, J.) in Miscellaneous Civil Application No. 1 of
2017 dated 17th August, 2018. In that application, the appellant had applied for
92
the High Court to call for and examine the records of proceedings of the
respondent of 6th December, 2017 in which the respondent cancelled the
appellant's registration for the purpose of satisfying itself as to the correctness,
legality and propriety of the respondent's decision. Having heard both parties to
the application and considering the exhibits tendered during hearing, the High
Court Judge was satisfied that the act of the respondent cancelling the appellant's
registration was justified and all the procedures were followed before the
cancellation. In the circumstances, he found the application to be baseless and
hence dismissed it. Aggrieved, the appellant lodged the current appeal with three
grounds quoted verbatim as follows:
1. That, the Honourable High Court Judge, Industrial
Division, erred in law in holding that the cancellation of the
Appellant's registration by the Registrar dated 17th
December, 2017 was lawfully (sic).
2. That, the Honourable High Court Judge, Industrial
Division, was wrong in failure to comprehend that the rules
of natural justice were deliberately violated in cancellation
of the appellant's registration.
3. That the Honourable High Court Judge, Industrial
Division, was wrong in failure to resolve judiciously that
the cancellation of the Appellant's registration was based on
manifest error on the face of record resulting in miscarriage
of justice.
At the hearing of the appeal, the appellant was represented by Mr. Isaack
Msengi, learned advocate and the respondent had the services of Mr. Ali Ali
Hassan, learned Principal State Attorney, assisted by Mr. Juma Msafiri, also
learned Principal State Attorney and Mr. Didas Khalfani, learned Stated
Attorney.
It has to be noted at the onset that before commencement of hearing of the
appeal on merits, Mr. Hassan raised a legal point that the appellant has no locus
standi before the Court. Upon being queried by the Court as to whether the issue
concerning appellant's locus standi was raised and determined by the High Court
during hearing of the application subject of this appeal, he replied in the negative.
Following that answer, we opted to hear first the appeal on merits pending
hearing of the legal issue of appellant's locus standi raised by Mr. Hassan.
93
In the course of preparation of our decision and upon thorough perusal of
the record of appeal, we discovered that, although the counsel for respondent
informed the Court that the issue concerning the appellant's locus standi he
intended to raise was not raised before the High Court, the said issue was raised
by the respondent as one among the four grounds in the respondent's notice of
preliminary objection lodged on 24th January, 2018 found on page 48 of the
record of appeal.
In the circumstances, we had no option other than recalling the parties to
address the Court on this pertinent issue. On 15th December, 2020 parties
appeared before the Court to address us on the locus standi of the appellant and
the coram was the same as on the previous day.
Mr. Hassan was the first to address and when prompted by the Court, he
conceded that the appellant's locus standi was questioned before the High Court
referring to page 48 of the record of appeal where the notice of preliminary
objection is found. He also referred us to page 84 of the record of appeal where
the counsel for the appellant raised a concern before the High Court that the
respondent's notice of preliminary objection was preferred under a wrong
provision of the law. The High Court Judge heard from both parties regarding
the competence of the said notice and in the end, struck out the said notice for
being incompetent.
Mr. Hassan submitted further that, since the respondent expected to win
the case against the appellant, which she won, she did not see the need to file a
fresh notice of preliminary objection as she ought to have done. As a result,
hearing of the case proceeded normally and at the end of the day, the decision of
the High Court subject of this appeal was delivered as indicated above.
As regards to the appellant's locus standi, Mr. Hassan stated that the
appellant had no locus standi to institute a case against the respondent. He argued
that section 48 of the appellant's Constitution empowers the Board of Trustees
to sue for the appellant. Therefore, the appellant had no locus standi to sue the
respondent and he urged us to find so. In addition, he contended that the
proceedings and decision of the High Court were null and void. Therefore, it is
as good as nothing had taken place before the High Court and there is no appeal
before the Court. Finally, he prayed for the Court to dismiss this appeal.
In reply, Mr. Msengi submitted that the appellant had locus standi to file
revision application against the respondent before the High Court following
94
respondent's cancellation of the appellant's registration. He argued that the
appellant was a recognized trade union in terms of section 25(1) of the Labour
Relations Act and thus, had locus standi to sue the respondent.
The learned counsel referred us to section 47(c) of the appellant's
Constitution which he said, gives the appellant authority to sue directly if the
Board of Trustees is not ready to do so. However, he said the Board of Trustees
did not give the appellant an authorization to sue the respondent in this matter
and therefore, he left it for the Court to decide.
We have carefully considered submissions by the counsel for the parties,
grounds and the record of appeal. We think, it is necessary for us to determine
first the issue regarding appellant's locus standi before turning to the merits of
the case. We observed that, although the learned High Court Judge struck out the
respondent's notice of preliminary objection for being improperly moved, still
the issue regarding appellant's locus standi was very vital and we think, the High
Court ought to have considered it. This is due to the fact that; the appellant's
claims could not be established by a person who is not entitled to claim before
the court. It is very unfortunate that the grounds of preliminary objection raised
by the respondent against the appellant's claims did not become an eye opener
for the appellant to reevaluate her locus standi before the court. Instead, the
appellant participated fully in the hearing of her application before the High
Court as scheduled.
Having heard the rival submissions for and against the appellant's locus
standi, the key issue for our determination which we think is capable to dispose
of this appeal is, whether the appellant had locus standi to institute the
application against the respondent before the High Court which eventually led
to the current appeal.
It has to be understood at the outset that, locus standi is a common law
principle which provides that, only a person whose right or interest has been
interfered with by another person has a right to bring his claim to court against
that other person (See Lujuna Shuhi Ballonzi, Senior v. Registered Trustees of
Chama cha Mapinduzi [1996] T.L.R. 203; Godbless Jonathan Lema v. Mussa
Hamis Mkanga & Two Others, Civil Appeal No. 47 of 2012 (unreported). We
wish to observe that a person whose right or interest has been interfered by
another is able to come to the court personally or through an authorised agent or
board depending on the circumstances of each case.
95
In the matter at hand, the appellant being a trade union was formed in
accordance to the law, the Labour Relations Act and its Constitution. Section 47
of the appellant's Constitution established a Board of Trustees which comprised
of members whose qualifications are stated in Swahili therein as follows:
Kutakuwepo na wajumbe wa Baraza la Wadhamini ambao
watateuliwa na Baraza Kuu, kwa kuzingatia sifa zifuatazo:
a) Miongoni mwa watu wenye uzoefu wa shughuli za
vyama vya Wafanyakazi na Maswala ya Sheria za Kazi.
b) Miongoni mwa waliokuwa viongozi wa shughuli za
Mahotelini na Utalii Nchini.
c) Watakaokuwa tayari kusimama Mahakamani kwa niaba
ya Chama.
d) Watu maarufu, waaminifu na waadilifu katika jamii.
e) Watachaguliwa kutoka nje ya miongoni mwa wajumbe
wa Kamati Tendaji. [Emphasis Added]
The literal translation of the above provision is that, “There shall be

members of the Board of Trustees with the following qualifications
who shall be appointed by the Supreme Council;
a) from amongst persons with experience in trade unions activites
and labour laws
b) from amongst persons who served as leaders in the hotel and
tourist industry in the country
c) those willing to stand in court on behalf of the Union
d) prominent, trustfull and ethical people in society
e) should be appointed outside the members of the Executive
Committee [Editor’s translation]
The functions of the Board of Trustees are stated under section 48,
they include to represent the appellant in court as stated under
subsection (ii) of that section which provides that:
(i) Kazi za Baraza la Wadhamini
(ii) Kusimamia chama na mali zake mbele ya vyombo
vya Sheria.
Therefore, in terms of section 48 (ii) of the appellant's Constitution, the
responsibility to sue is vested on the Board of Trustees and not the appellant as
a trade union. This is due to the fact that the appellant is guided by her
96
Constitution in all matters pertaining to the union as stated under section 1 of the
said Constitution thus:
….Sisi Wafanyakazi wa Sekta hizo kwa niaba ya
wenzetu tumeamua kujiunga pamoja na kuanzisha chama
chetu cha Wafanyakazi kitakachojulikana kwa Jina la
Chama cha Wafanyakazi wa Mahoteli, Mikahawa na
kazi zihusianazo nazo kwa kifupi "HORAU'' Hotels,
Restaurants and Allied workers Union ambacho
kimeanzishwa tarehe 19/10/2008 na kusajiliwa rasmi
tarehe 27/04/2009 chini ya sheria ya uhusiano kazini No
1 2005 ya Zanzibar. Chama hiki kitatetea, kulinda haki
na ajira zetu pamoja na kuende/eza taaluma ya utoaji wa
huduma kwa wageni na Watalii kwa jumla, kwa hivyo
sisi wanachama wa HORAU kupitia katika mkutano
Mkuu wetu wa Taifa u!iofanyika tarehe 15/10/2011
katika ukumbi wa Hoteli ya Bwawani, tumepitisha katiba
hii, pamoja na marekebisho yake kwa kauli moja.
Shortly, section 1 of the Constitution commits members to abide by
what is provided in the Constitution of the Trade Union, namel, the
Hotels, Restaurants and Allied Workers Union which was
established on 19/10/2008 and registered on 27/04/2009 under the
Labour Relations Act, No 1of 2005 of the Laws of Zanzibar. The
Union shall promote and defend the rights and employment of its
members in addition to promotion of professional services offered
to foreigners and tourists [Editors translation]
Therefore, it is very clear that all members of the appellant1’s union consented
to be led by their Constitution.
In his submission before us, the counsel for the appellant argued that the
Board of Trustees was not ready to come to court to sue that is why the appellant
decided to institute the case. According to his interpretation section 47 (c) of the
appellant's Constitution gives an option to the Board of Trustees to come to court
when they are ready or otherwise. Therefore, having seen that the Board of
Trustees were not ready to come to the court, the appellant exercised its right
under the Labour Relations Act to sue the respondent.
97
The arguments by counsel for the appellant were vehemently in opposition
of the counsel for the respondent who argued, which we agree, that the appellant
had no locus standi to sue the respondent because the appellant's Constitution
states categorically under Article 48 that, among the functions of the appellant's
Board of Trustees is to represent the appellant before the court.
In the circumstances we find that the appellant had no locus standi to
institute a case against the respondent. Therefore, we do not see the need to
determine the three grounds of appeal presented by the appellant before us.
Consequently, in exercise of our revisional powers under section 4(2) of the
Appellate Jurisdiction, Cap. 141, we nullify the proceedings of the High Court
and set aside the dismissal order. Since this appeal emanated from null
proceedings, it is improperly before us and therefore, we dismiss it.
Appeal dismissed
CHAMA CHA WALIMU TANZANIA v. THE ATTORNEY

GENERAL
AT DAR ES SALAAM
(RUTAKANGWA, KIMARO, LUANDA, JJ.A.)
CIVIL APPLICATION NO. 151 OF 2008
(Application for Revision from the Proceedings and Ruling of the High Court
of Tanzania (Labour Division) at Dar es salaam, Mandia, J. dated the 13th day
of October, 2008 in Application No. 19 of 2008)
Injunction - Respondent impleaded the Court to grant an order for permanent
injunction restraining the Respondent and its members from calling for and/
or participating in an illegal planned strike – Whether the injunction issued was
an interlocutory one or had the effect of finally determining the application
before the Labour Court.
98
Application for Revision – Appellant moves the Court to exercise its powers of
revision - Whether appellant demonstrated any circumstances special or
otherwise, to move the Court to exercise its powers of revision as an alternative
to appellate jurisdiction
Defective application – Application for revision - Whether the application was
fatally defective for want of proper enabling provision of the law to move the
court
Application for revision - Application adjudged incompetent but fatal illegality

is patent on the face of the Court’s record in respect of a previous application
that gave rise to the incompetent application for revision - Whether the previous
application can be revised by the Court. This is an application for revision. It
was brought by Notice of Motion under section 4(3) and (5) of the Appellate
Jurisdiction Act, Cap 141, and Rule 45 of the Tanzania Court of Appeal Rules,
1979. The applicant, Chama cha Walimu Tanzania, or C.W.T, is seeking revision
of the proceedings in Application No. 19 of 2008 in the Labour Division of the
High Court of Tanzania. When the application was called on for hearing, the
respondent rose to argue four (4) points of preliminary objection, notice of which
had earlier been lodged.
Held: (i) In law, an injunction is said to be interlocutory when granted in an
interlocutory application and continues until a certain defined period. It aims at
preserving the status quo until, say, the final determination of the main
application or suit.
(ii) The order issued was not interlocutory. It had the effect of conclusively
determining the application. Both in form and substance the issued injunction
order carried the hallmarks of finality, as it was not granted pending any further
action being taken in those proceedings.
(iii) It is settled law that except under exceptional circumstances a party to
proceedings in the High Court cannot invoke the revisional jurisdiction of this
Court as an alternative to the appellate jurisdiction of the Court, unless it is
shown that the appellate process had been blocked by judicial process. The
applicant, therefore, had an automatic right of appeal to this Court under section
57 of the Labour Institutions Act, 2004.
(iv) It is clear from the plain language of section 94 (1) that the section was never
intended to be an enabling provision for instituting any proceeding before the
Labour Court. Falling under Part VII Sub - Part C, which is headed
''Adjudication" it only spells out the powers of the Labour Court. Being
99
judicial powers, it can only exercise them when properly moved and/or
when the person wanting it to exercise them has a right conferred on him to do
so either under this Employment Act itself or under any other written law.
(v) Where a trial judge in the Labour Court is enjoined by law to strike out an
incompetent application and did not do so, it now falls within the jurisdiction of
the Court of Appeal to do what he failed to do.
Proceedings quashed
Cases referred to
(1) J.H. Komba, Esq, Ex-Employee, E.A. Community v. The Regional
Revenue Offcer, Arusha & Two Others, Ar, Civil Application No. 3 of
2002;
(2) Halais Pro Chemie v. Wella A.G. [1996] T.L.R. 269 (CA);
(3) Attilio v. Mbowe (1969) HCD 284;
(4) Antony J. Tesha v. Anita Tesha, Civil Appeal No. 10 of 2003;
(5) Olmeshuki Kisambu v. Christopher Naing'ola, Civil Revision No. 1 of
2000;
(6) Augustino L. Mrema v. R., Cr. Appeal NO. 61 OF 1988;
(7) Attorney Ajar Patel v. Abdulrazak Jussa Suleiman, ZNZ Civil Application
No. 2 of 2003;
(8) Edward Bachwa & Three Others v. The Attorney General & Another,
Civil Application No. 128 of 2008;
(9) China Henan International Co-Operation Group v. Salvand K.A.
Rwegasira, Civil Application No. 22 of 2005;
(10) Fabian Akonaay v. Mathias Dawite, Civil Application No. 11 of 2003;
(11) Tanzania Heart Institute v. The Board of Trustees of the National Social
Security Fund, Civil Application No. 109 of 2008;
(12) Mathias Eusebi Soka v. The Registered Trustees of Mama Clementina
Foundation & Two Others, Civil Appeal No.40 of 2001; and
(13) Aloyce Msele v. The Consolidated Holding Corporation, Civil Appeal No.
11 of 2002.

(1) Section 4(3) and (5) of the Appellate Jurisdiction Act, Cap 141;
(2) Rule 45 of the Tanzania Court of Appeal Rules, 1979;
(3) Section 57 of the Labour Institutions Act, 2004;
100
(4) Section 26 (2) (d) of the Public Service (Negotiating Machinery) Act,
2003;
(5) Rule 94(1) (f) (11) of the Employment and Labour Relations Act No. 6 of
2004;
(6) Rules 24 (11) (a); 24(11) (c) of Labour Court Rules Government Notice
No. 106 of 2007; and
(7) Rules 55(1) and 55(2) of Labour Court Rules Government Notice No. 106
of 2007.
Messrs Marando and Mnyele, for Applicant

Mr. Chidowu, for Respondent
RULING OF THE COURT

13th November, 2008
RUTAKANGWA, J.A.: This is an application for revision. It is brought by

Notice of Motion under section 4(3) and (5) of the Appellate Jurisdiction Act,
Cap 141, henceforth the Act, and Rule 45 of the Tanzania Court of Appeal Rules,
1979, (hereinafter, the Rules).
The applicant, Chama cha Walimu Tanzania, or C.W.T, through Mr.
Mabere Marando, and Mr. Gabriel Mnyele, learned advocates, is seeking
revision of the proceedings in Application No. 19 of 2008 in the Labour Division
of the High Court of Tanzania, henceforth the Labour Court. The application
was instituted against it by the respondent herein, the Attorney General of
the Government of the United Republic of Tanzania. Among the grounds cited
in the notice of motion for moving the Court to exercise its revisional jurisdiction
are that the Labour Court:
i. entertained the said application without jurisdiction;

ii. entertained the application which was not properly
before it;
iii. heard the application and granted the order prayed for
therein without affording the applicant opportunity to
101
present its case by way of a counter affidavit, thereby
denying it the right to be heard; and
iv. relied on extraneous matters that were not on record in
granting an injunction, and without specifying as to
whether it was permanent or temporary.
The respondent has vehemently opposed the application. Mr. Donald Chidowu,
learned Principal State Attorney, appeared before us to resist the application.
To facilitate a quick appreciation of the reasons behind this application, a
brief background is necessary. The affidavital evidence on record and the
proceedings before the Labour Court, provide this background.
The applicant is a trade union, duly registered under the provisions of the
Employment and Labour Relations Act, 2004 [No.6], henceforth the
Employment Act. It has about 156,923 members who are employed in the
teaching profession nationwide. For quite some time the applicant, on behalf of
its members, has locked horns with the government of the United Republic of
Tanzania (the government hereinafter) over a number of issues concerning the
welfare of its members. On 4th February, 2008, the applicant declared a trade
dispute with the government. On 18th August, 2008 it issued a strike notice of
sixty (60) days. The said notice was issued pursuant to the mandatory
requirements of section 26 (2) (d) of the Public Service (Negotiating Machinery)
Act, 2003 (No. 19), henceforth Act No. 19 of 2003. The strike, according to the
notice, was to start on 15th October, 2008. Subsequent to the said strike notice,
the two parties together with other stakeholders, between 26th August, 2008 and
4th October, 2008, held four meetings with a view to settle the dispute by way of
negotiations. The meetings did not fully resolve the impasse.
On 9th October 2008, the Majira newspaper published that the teachers
were to strike effective from 15th October, 2008. It was quoting one Gratian
Mukoba, the applicant's President, as the source of that information.
Believing that the threatened strike was illegal and malicious, the Attorney
General, on 10th October 2008, instituted the earlier mentioned application under
a certificate of urgency. The application was by chamber summons and the
respondent (applicant then) was seeking the following orders:
1. That this Honourable Court be pleased to grant an order for
permanent injunction, restraining the Respondent and
102
their (sic) members from calling for and/ or participating
in the planned strike to be held on 15th October, 2008.
2. That this Honourable Court be pleased to give such further
orders and directions in these proceedings as it shall deem
appropriate.
3. Costs of this Application be paid by the Respondents.
[Emphasis is ours].
The Labour Court was moved to grant these reliefs or orders under "Rule 94(1)
(f) (11) of the Employment and Labour Relations Act No. 6 of 2004, rules 24
(11) (a); 24(11) (c), 55(1) and 55(2) of Labour Court Rules Government Notice
No. 106 of 2007."
The Labour Court issued a summons for mediation on 13th October, 2008.
The mediation was to take place on the same day at 12.00 noon. Our perusal of
the Labour Court original record has revealed that of the four top officials of the
C.W.T. who were to be served with copies of the court summons and chambers
summons, only two were served. These were Mwl. Ezekiel T. Oluoch [the
Deputy Secretary General] and one Leonard Haule, who were served at 11:43
a.m. and 11:47 a.m. respectively. The President and Secretary General of C.W.T.
were not served. Mediation, however, did not take place because the parties were
not represented by officials with authority to mediate. The Registrar sent the
court record to "Justice Mandia for directions" on the same day. Before Mandia,
J., Mr. Senguji, learned Principal State Attorney, appeared for the Attorney
General, being assisted by Ms Barke Sahel, learned Senior State Attorney. For
the respondent C.W.T., Mr. Mnyele, learned advocate, entered appearance.
What was supposed to be an appearance to receive directions turned out
to be an appearance for the hearing of the application. Both counsel for the
respondent herein submitted that the C.W.T. had called out a strike without
complying fully with the provisions of s. 26(2) of Act No. 19 of 2003. They
accordingly urged the learned Judge to grant, on the basis of the enabling
provisions cited in the chamber summons, "their application for a temporary
injunction'; while they continued with negotiations. We have to observe in
passing here that there was no application for a temporary injunction.
Mr. Mnyele resisted the prayer. To him the prayer was being made prematurely
as they were yet to file a counter - affidavit. He also submitted that the said court
had no jurisdiction to entertain the application as it had been wrongly instituted
103
under the provisions of the Employment Act when the appropriate legislation
was Act No. 19 of 2003. He accordingly pressed that the application be “thrown
out for want of jurisdiction" or, in the alternative, before the sought injunction
was granted, they be afforded opportunity to file a counter - affidavit as they had
only been summoned for mediation.
In his short rejoinder Mr. Senguji argued that the Court had exclusive jurisdiction
over the matter under the enabling provisions cited and the respondent had no
automatic right to file a counter- affidavit.
In his ruling, the learned judge held that the court was seized with jurisdiction to
hear and determine the matter. He then proceeded to consider the averments
contained in the affidavit of one Mathias Kabunduguru, filed in support of the
chamber summons, and its various annextures. After considering the principles
enunciated in the case of Attilio v. Mbowe (1969) HCD 284 on the grant of
injunctions, he granted the injunction sought in the chamber summons.
The C.W.T. was aggrieved by the conduct of the entire proceedings before the
Labour Court. It immediately filed this application.
When the application was called on for hearing, Mr. Chidowu rose to argue four
(4) points of preliminary objection, notice of which had earlier been lodged. The
four grounds of objection are as follows:
1. The Application is incompetent for the Applicant has not
demonstrated any circumstances special or otherwise, to
move this Honouracie Court to exercise its powers of
revision as an alternative to appellate Jurisdiction.
4. The Application is misconceived as the Order that the
Applicant wants this Honourable Court to revise is an
interlocutory order.
5. The application is fatally defective for want of proper
enabling provision of the law to move the court in this
application.
6. The Affidavit in support of the application is bad in law for
accommodating hearsay evidence, citation of laws and
legal grounds contrary to the principles governing affidavits.
Both counsel submitted at length either in support of or in opposition to each

one of these four points of objection. Mr. Chidowu adamantly argued that the
104
application is incompetent and should be struck out. He cited to us a number of
decisions by this Court in support of his position on each point. Mr. Mnyele was
equally forceful and resourceful in urging us to find each point to be
misconceived in law. He, too, referred us to a number of decisions by the Court
to bolster his arguments. We shall begin our discussion with the first point of
objection as listed above.
As already shown in this ruling, the respondent went before the Labour Court
seeking a permanent injunction to restrain the applicant and its members "from
calling for and/or participating in the planned strike to be held on 15th October
2008” We have already demonstrated how the learned High Court Judge heard
the respondents on his application even before the applicant had filed its counter
- affidavit.
Indeed, Mr. Senguji had pressed the High Court to grant the orders sought
forthwith, because as he put it, "a counter - affidavit is not granted
automatically' . We cannot restrain ourselves from observing that this was an
unfortunate proposition, as rule 24(4) of the Labour Court Rules grants an
automatic right to a respondent to file "a notice of opposition, a counter
affidavit or both" within “fifteen days from the day on which the
application is served on the party concerned” This clear provision of the law
notwithstanding, the learned judge essentially heard the respondent on the merits
and subsequently ruled as follows:
After all is said and done, this court finds that there has been
made out a good case by the applicant in support of the
orders prayed for in the application. The respondent
CHAMA CHA WALJMU TANZANIA (C.W.T) are hereby
restrained from calling for and/or participating in the
th
planned strike to be held on 15 October, 2008. In view of
the limited time available, the two parties to this matter should
each make an immediate announcement in the media of the
grant of this injunction. [Emphasis is ours].
The issue here is whether this injunction was an interlocutory one or had the
effect of finally determining the application before the Labour Court. In law, an
injunction is said to be interlocutory when granted in an interlocutory application
and continues until a certain defined period. It aims at preserving the status quo
until, say, the final determination of the main application or suit. According to
BLACK'S LAW DICTIONARY 8th edition, at page 800:
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A temporary injunction is issued before or during trial to prevent an irreparable
injury from accruing before the court has a chance to decide the case.
The form which such an injunctive order takes is well explained in KERR ON
INJUNCTIONS, 6th edition, by J.M. Patterson, at page 648 as follows:
.... Under the former practice the form usually adopted was
'until the hearing of the cause. Under the present practice it is
'until judgment in this action; or ‘until further order’. to show
that the injunction is not to extend beyond the date when
judgment is given, unless then continued, nor until Judgment
if discharged previously by order of the Court.
Mr. Mnyele strenuously argued that the injunction order given by the Labour
Court on 13/10/2008 was an interlocutory one and so they could not appeal in
view of the mandatory provisions of s. 5(2) (d) of the Act. However, he argued,
they have found it proper to proceed by way of revision because their complaint
is not against the injunction order. They are challenging the regularity of the
proceedings in the Labour Court, which he said, were irregularly conducted as
the grounds in the notice of motion show.
On his part, Mr. Chidowu, who was admittedly equivocal, argued that the
respondent had moved the High Court to grant an injunction restraining the
applicant and its members from calling for and/or participating in the planned
strike. Since the application was granted, he stressed, the applicants, if
aggrieved, ought to have appealed. He cited to us the decision of this Court in
the case of J.H. Komba, Esq, Ex-Employee, E.A. Community v. The Regional
Revenue Offcer, Arusha & Two Others, Ar, Civil Application No. 3 of 2002
(unreported), in support of his submissions.
We have carefully considered all the arguments presented to us on the issue. We
have dispassionately read the ruling of the Labour Court and the order extracted
therefrom in the light of the order sought in the chamber summons. We are of
the firm view that the order issued was not interlocutory. It had the effect of
conclusively determining the application. The respondent was unreservedly
granted what he was seeking in the chamber summons, as the applicant and its
members were unequivocally restrained from "calling for and/or participating in
the planned strike". There was no other issue remaining to be determined by the
Labour Court. Both in form and substance the issued injunction order carries the
hallmarks of finality, as it was not granted pending any further action being taken
106
in those proceedings. That is why no order to file a counter - affidavit was given.
The applicant, therefore, had an automatic right of appeal to this Court under
section 57 of the Labour Institutions Act, 2005. The grounds of complaint
shown in the notice of motion, in our settled view, all being points of law, would
have been taken up as grounds of appeal.
It is settled law that except under exceptional circumstances a party to
proceedings in the High Court cannot invoke the revisional jurisdiction of this
Court as an alternative to the appellate jurisdiction of the Court, unless it is
shown that the appellate process had been blocked by judicial process. See, for
instance, Halais Pro Chemie v. Wella A.G. [1996] T.L.R. 269 (CA). No such
circumstances have been shown here. We accordingly uphold this particular
point of preliminary objection, and hold that the application for revision is
incompetent.
In view of our holding on the first point of objection, it is obvious that the second
point does not hold water. Indeed, the two points would have fittingly been raised
in the alternative. Regarding the other two points, we find no pressing need here
to canvass them. However, in order to avoid a recurrence of the same mistake,
we only wish to observe quickly that this Court had been properly moved under
section 4(3) of the Act. See, for instance, this Court’s decisions in Olmeshuki
Kisambu v. Christopher Naing'ola, Civil Revision No. 1 of 2000, Augustino L.
Mrema v. R., Cr. Appeal NO. 61 OF 1988, HARISH A. JINA By his Attorney
Ajar Patel v. Abdulrazak Jussa Suleiman, [ZNZ Civil Application No. 2 of 2003
(all unreported).
Normally, having ruled the application to be incompetent we would have
proceeded to strike it out forthwith. However, because of a fatal illegality
which is patent on the face of the Labour Court's record, we shall refrain
from following that path. We shall now show why.
While urging us to strike out this application on the ground of wrong citation of
the enabling provisions of the law, Mr. Chidowu correctly submitted that it is
settled law that such citation and/or non-citation renders the relevant proceeding
incompetent. He fortified his argument by citing the decision of this Court in
the case of Edward Bachwa & Three Others v. The Attorney General & Another,
Civil Application No. 128 of 2008 (unreported).
In response to a question posed by the Court, Mr. Chidowu candidly admitted
that this principle of law applies to all courts. His attention was then drawn to
107
the facts that the application before the Labour Court had been taken under "Rule
94(1) (f) (ii) of the Employment and Labour Relations Act No. 6 of 2004" as the
main enabling provision and that the said Employment Act has no such
provision. He admitted forthwith that that was wrong citation and given the
stance of the law, the Labour Court had been wrongly moved to issue the
injunction.
Indeed, the learned trial judge was aware of this irregularity. He, however,
disregarded it and took it upon himself to rectify it without being moved, by
holding in the ruling thus:
… Section 94(1) (f) (ii) is the one granting this court powers
to entertain injunctions. The applicant must have meant section
94 (1) (f) (it) and not rule 94(1) (f) (ii)
After so surmising, the learned trial judge determined the application by granting
the orders sought in the chamber summons, as already shown.
As rightly admitted by Mr. Chidowu and supported by both counsel for the
applicant, non-citation and/or wrong citation of an enabling provision render the
proceeding incompetent. Decisions by this Court in which this principle of law
has been enunciated are now legendary. Most of them are cited in the case of
Edward Bachwa v. The Attotney General (supra). To that list may be added:
(i) Fabian Akonaay v. Mathias Dawite, Civil Application No.
11 of 2003 ( unreported) and
(ii) Harish Jina v. U.A.J. Suleiman (supra).
In Harish Jina's Case, where an inapplicable section was cited, the Court
categorically stated that citing a wholly inapplicable provision of the law, was a
worse situation than citing a correct section but a wrong sub-section. As if
providing, in anticipation, an answer to our current problem, the Court said:
… it may well have been a typographical error as pleaded by
Mr. Patel, but if that was so, he ought to have sought to correct
the error before the matter came for hearing.
It is the duty of a party and not that of the court to correct his pleading and/or
documents relied on. If it were otherwise we would not avoid being reproached
with putting aside our mantle of impartiality.
108
It may also be worthwhile pointing out here that the gravity of the error in
omitting either to cite the enabling provision or citing a wrong one was
succinctly stated by this Court in the case of China Henan International Co-
Operation Group v. Salvand K.A. Rwegasira, Civil Application No. 22 of 2005
(unreported). The Court said:
... Here the omission in citing the proper provision of the rule
relating to a reference and worse still the error in citing a wrong
and inapplicable rule in support of the application is not in our
view, a technicality falling within the scope and purview of
Article 107A(2) (e) of the Constitution. It is a matter which
goes to the very root of the matter. We reject (the)
contention that the error was technical: [Emphasis is ours].
That being the clear position of the law, the learned trial judge ought to have
struck out the application before him.
But would the respondent's application before the Labour Court have been saved
by citing section 94(1) (f) (ii) of the Employment Act as the enabling provision?
Our considered answer to this pertinent question, after studying the entire Act,
is in the negative. Let us first look at this provision itself. It provides as follows:
94.-(1) Subject to the Constitution of the United Republic of
Tanzania, 1977, the Labour Court shall have exclusive
jurisdiction over the application, interpretation and
implementation of the provisions of this Act and to decide-
(a) appeals from the decisions of Registrar made under
Part JV:
(b) reviews and revisions of -
(i) arbitrator's awards made under this Part
(ii) decisions of the Essential Services Committee made under
Part VI;
(c) reviews of decisions, codes, guidelines, or
regulations made by the Minister under this Act·
(d) complaints, other than those that are to be decided by
arbitration under the provisions of this Act;
(e) any dispute reserved for decision by the Labour Court
under this Act; and
(f) applications including -
(i) a declaratory order in respect of any provision of this Act or
109
(ii) an injunction.
It is clear from its plain language that the section was never intended to be an
enabling provision for instituting any proceeding before the Labour Court.
Falling under Part VII Sub - Part C, which is headed ''Adjudication" it only
spells out the powers of the Labour Court. All the same, in our considered
opinion, the Labour Court cannot exercise these wide powers randomly or as and
when it wishes. Being judicial powers, it can only exercise them when properly
moved and/or when the person wanting it to exercise them has a right conferred
on him to do so either under this Employment Act itself or under any other
written law. But, in our settled view, that right does not emanate from section
94(1) (f) (ii) as we shall presently demonstrate, by citing a few examples.
It cannot be seriously contended that any person feeling aggrieved by a decision
of the Registrar under Part IV can appeal to the Labour Court on the basis of S.
94(1) (a). The right of appeal is created or granted by section 57. This section
reads as follows:
Every person aggrieved by a decision of the Registrar made
under this Part may appeal to the Labour Court against that
decision.
Similarly, a person wishing the Labour Court to review or revise an arbitrator's
award made under Part VIII, cannot move that court under s. 94(1) (b) (i). He
or she has to proceed under s. 91(1). Also, the right to refer a complaint to the
Labour Court is granted by s. 86(7) (b) and not s. 94(1) (d). Again, applications
for declaratory orders are covered by s. 85(4) and (5), among others, and not s.
94(1) (f) (i), etc.
On the issue of injunctions generally, we find that indeed the Labour Court has
jurisdiction to grant them. Regarding injunctions to restrain a strike, it is also our
finding that the said court has been given such jurisdiction under the
Employment Act only. All the same, such jurisdiction is subject to two
conditions precedent. These are that the strike must be illegal and it [Court] must
be properly moved under the relevant enabling provisions of the said Act. From
our objective reading of this Act, we are of the settled mind that the only relevant
provision is section 84(1) (a). This provision reads as follows:
Where a strike or lockout is not in compliance with this Act,
or a trade union or employer or employers' association engages
110
in prohibited conduct; the Labour Court shall have exclusive
jurisdiction -
(a) to issue an injunction to restrain any person from -
(i) participating in an unlawful strike or lock out
(ii) engaging in any prohibited conduct;
So, assuming, without deciding here, that the provisions of the Employment Act
cover strikes declared under s. 26(2) of the Act No. 19 of 2003, then one seeking
an injunction to restrain such a strike ought to proceed under s. 84(1)(a). It goes
without saying, therefore, that the learned trial judge had been wrongly moved
and erred in law in entertaining and determining Application No. 19 of 2008
which was not competently before him. It will then be accepted without further
elaboration that the proceedings before Mandia J. were a nullity. Since the
proceedings were a nullity even the order made therein including the court's
ruling and final order were a nullity. Fortunately, counsel for both parties in these
proceedings are of the same firm view.
Because the proceedings before the Labour Court were a nullity, that's why we
felt constrained not to strike out this application. We did so in order to remain
seized with the Labour Court's record and so be enabled to intervene suo motu
to remedy the situation. This Court recently thus acted, in almost similar
circumstances, in the case of Tanzania Heart Institute v. The Board of Trustees
of the National Social Security Fund, Civil Application No. 109 of 2008
(unreported).
As the learned trial judge was enjoined by law to strike out the respondent's
incompetent application and did not do so, it now falls within our jurisdiction to
do what he failed to do. This will not be the first time the Court is doing so. It
has thus intervened in the past.
In the case of Mathias Eusebi Soka v. The Registered Trustees of Mama
Clementina Foundation & Two Others, Civil Appeal No.40 of 2001 (unreported)
the Court struck out a notice of appeal against the National Insurance
Corporation of Tanzania, a Specified Public Corporation, which had been sued
without prior leave of the High Court in terms of s. 9 of the Bankruptcy
Ordinance. After striking out the notice the Court went on to pertinently observe
that:
... However, that is not enough because the decision of the
High Court will still remain intact though illegal.
111
It accordingly invoked its revisional powers under section 4(2) of the Act, to
quash the proceedings in the High Court and set aside all the orders made therein.
In the case of Antony J. Tesha v. Anita Tesha, Civil Appeal No. 10 of 2003
(unreported), during the hearing of the appeal it was discovered that the High
Court had issued leave to appeal when it had been wrongly moved. The Court
held that the High Court had erred in not striking out the application. It
accordingly struck out the application as well as the notice of appeal. The Court
did the same in identical circumstances of wrong citation in the case of Aloyce
Msele v. The Consolidated Holding Corporation, Civil Appeal No. 11 of 2002
(unreported).
In this particular case we are strictly enjoined by law to do what the learned trial
judge in the Labour Court failed to do. Failure to do so would be tantamount to
perpetuating illegalities, and in particular the injunction order which is
admittedly a nullity. Acting under s. 4(3) of the Act we hereby revise the
incompetent proceedings in the Labour Court. The same as well as all the orders
including the impugned injunction granted therein, are hereby quashed and
accordingly set aside. We make no order for costs.
Proceedings quashed
CMA-CGM TANZANIA LIMITED v. JUSTINE BARUTI

AT DAR ES SALAAM
(NDIKA, KWARIKO, and SEHEL. JJ.A.)
Division at Dar es Salaam, Mashaka, J. dated the 23rd day of May, 2018 in
Appeals – Appeals from decisions of the High Court, Labour Division to the
Court of Appeal of Tanzania – Appeals should be on a point of law only - What
112
amounts to a point of law as opposed to a matter of fact - Section 57 of the
Labour Institutions Act, Cap 300
Preliminary objection - Appellant raised four grounds of appeal to the Court --
Appeal greeted with two sets of preliminary objections - Whether the assailed
grounds of appeal raise points of law.
Preliminary objection – Jurisdiction of Commission for Mediation and
Arbitration – Ground of appeal alleges that judge did not address the question
whether the Referral Form CMA Fl which was allegedly filed by the respondent
with the Commission for Mediation and Arbitration prior to serving the
employer was filed in accordance with the law – Whether the ground raises a
point of law.
Preliminary objection – ground of appeal alleges that judges erred in law in
holding that the appellant failed to prove valid reasons for termination of the
respondent – Whether the ground raises a point of law.
Record of appeal – Record of appeal is deficient due to the omission of a number
of core documents – Whether the omission had a deleterious effect to the
competence of the appeal.
The appellant lost in Labour Revision No. 28 of 2016 in the High Court of
Tanzania, Labour Division at Dar es Salaam in which she contested an award
made by the Commission for Mediation and Arbitration (CMA) in favour of the
respondent. In its decision dated 23rd May, 2018, the High Court upheld the
CMA's finding that the respondent's termination of employment by the appellant
was substantively unfair. The court also upheld the CMA's order that the
respondent be reinstated to his position of employment in terms of section 40 (1)
(a) of the Employment and Labour Relations Act, 2004 without loss of
remuneration or, in the alternative, that the appellant pay the respondent
compensation pursuant to section 40 of the ELRA. Aggrieved, the appellant has
appealed to this Court.
Held: (i) It is common ground that any appeal to this Court from a decision of
the High Court, Labour Division is governed by section 57 of the Labour
Institutions Act 2004. The appeal should be on a point of law only.
(ii) The ground whether the Referral Form CMA F1 was filed in accordance with
section 86 (1) and (2) of the ELRA requiring a party referring a dispute to the
CMA to satisfy the CMA that a copy of the referral has been served on the other
parties to the dispute raises a point of law. The determination of this ground
113
would entail interpretation of section 86 (1) and (2) of the ELRA as well as its
application to the facts of the case on the question whether the referral form was
duly filed and served.
(iii) The ground that the Judge erred in law in holding that the appellant failed to
establish a valid reason for terminating the respondent's employment is evidently
a point of law fitting neatly within section 37 (1) and (2) of the ELRA, which
not only places on the employer the onus of proving validity and fairness of
termination of employment but also defines what a valid reason for termination
is.
(iv) The third ground faulted the Judge for a misdirection on the evidence on
record. As it is apparent that the appellant alleges that the respondent admitted
to have committed certain charged offences, it is indeed a question of law, not
fact, whether the appellant still had the onus to produce documentary evidence
to prove the offences.
(v) In terms of rule 96 (1) and (2) of the Rules the omitted documents are not
core. These documents are not necessary for the proper determination of the
points of controversy in the appeal.
Appellant to seek rectification of certificate of delay
Cases referred to
(1) Atlas Copco Tanzania Limited v. Commissioner General, Tanzania
Revenue Authority, Civil Appeal No. 167 of 2019;
(2) Kilombero Sugar Company Limited v. Commissioner General (TRA),
(3) Insignia Limited v. Commissioner General, Tanzania Revenue Authority,
(4) Meenakshi Mills, Madurai v. The Commissioner of Income Tax, Madras
(1957) AIR 49, 1956 SCR 691;
(5) Gatirau Peter Munya v. Dickson Mwenda Kithinji & Three Others [2014]
Eklr;
(6) M/S Flycathcher Safaris Ltd. v. Hon. Minister for Lands and Human
Settlements
(7) Development and Another, Civil Appeal No. 142 of 2017;
(8) Hamisi Mdida and Another v. The Registered Trustees of Islamic
Foundation, Civil Appeal No. 59 of 2020; and
114
(9) Ecobank Tanzania Limited v. Future Trading Company Limited, Civil
Appeal No. 142 of 2017.

(1) Section 57 of the Labour Institutions Act, Cap 300;
(2) Section 40 (1) (a) of the Employment and Labour Relations Act, 2004
(now Cap. 366 RE 2019);
(3) Section 37 (1) and (2) of the Employment and Labour Relations Act, 2004
(now Cap. 366 RE 2019);
(4) Rule 96 (1) and (2) of the Court of Appeal Rules, 2009;
(5) Rule 90 (3) of the Court of Appeal Rules, 2009;
(6) Section 25 (2) of the Tax Revenue Appeals Act, Cap. 408 R.E. 2006 (now
R.E. 2019);
(7) Section 86 (1) and (2) of the Employment and Labour Relations Act, 2004
(now Cap. 366 RE 2019); and
(8) Section 60 (1) (f) of the Interpretation of Laws Act, [Cap 1 R.E. 2019].
Messrs. Halfan and Ngole, for Appellant,

Dr. Kapinga, for Respondent
RULING OF THE COURT

15th June, 2021
NDIKA, J.A.: The appellant, CMA-CGM Tanzania Limited, lost in Labour
Revision No. 28 of 2016 in the High Court of Tanzania, Labour Division at Dar
es Salaam in which she contested an award made by the Commission for
Mediation and Arbitration (henceforth "the CMA") in favour of the respondent,
Justine Baruti. In its decision dated 23rd May, 2018, the High Court (Mashaka,
J., as she then was) upheld the CMA's finding that the respondent's termination
of employment by the appellant was substantively unfair. The court also upheld
the CMA's order that the respondent be reinstated to his position of employment
in terms of section 40 (1) (a) of the Employment and Labour Relations Act, 2004
(now Cap. 366 RE 2019) (henceforth "the ELRA") without loss of remuneration
or, in the alternative, that the appellant pay the respondent compensation
pursuant to section 40 (3) of the ELRA. Aggrieved, the appellant has appealed
to this Court on four grounds as follows:
115
1. The Honourable Judge erred in law in dismissing the issue
of Jurisdiction of the Commission for Mediation and
Arbitration to entertain the dispute before it. The Honourable
Judge did not address herself on the question whether the
Referral Form CMA Fl which was allegedly filed by the
respondent herein to the Commission for Mediation and
Arbitration prior to serving the employer was filed in
accordance with the law.
2. The Honourable Judge erred in law in holding that the
appellant herein failed to prove valid reasons for termination
thereby dismissing Revision No. 28 of 2016.
3. The Honourable Judge misdirected herself in upholding the
arbitrator's decision which was based on the alleged failure by
the appellant herein to tender at the CMA printouts to
corroborate the offences with which the respondent had been
charged despite the fact that the said offences were admitted
by the respondent and in law did not require proof.
4. The Honourable Judge erred in holding that the arbitrator's
decision was not based on factors which were beyond the two
issues raised before the Commission for Mediation and
Arbitration, namely:
1) Whether there was a fair reason for termination; and
2) What are the reliefs to which the parties are entitled.
The present appeal has been greeted by two sets of preliminary objections lodged
on 5th March, 2020 and 26th May, 2021 challenging its competence. In the first
set, the respondent demurred, on two points, that:
1. This Court has no Jurisdiction to entertain the 1st, 2nd and
3rd grounds of appeal as they are not based on points of law as
required under section 57 of the Labour Institutions Act No. 7
of 2004. (They are based on points of facts while others on
mixed points of law and facts).
2.That the record of appeal is incomplete for want of a copy
of certificate of delay issued by the High Court of Tanzania,
116
Tanga Registry on the 11th December, 2019, a letter from the
Registrar informing the appellant that the proceedings are
ready for collection dated 2nd March, 2019, a notice of address
dated 11th June, 2018 served to (sic) the appellant on the 15th
June, 2018, a letter applying for transfer of Revision No. 28
of 2016 from the High Court of Tanzania, Tanga Registry to
Dar es Salaam Registry, a letter from the Registrar of the High
Court informing the parties on the transfer of Revision No. 28
of 2016, and order of the Court transferring Revision No. 28
of 2016 into (sic) Dar es Salaam Registry and therefore,
incurably defective for contravening the provisions of rule 96
(1) of the Court of Appeal Rules, 2009 as amended from time
to time.
In the second set, the respondent raises two further points as
follows:
1. That the appeal before the Court is hopelessly time-barred.
2. The appellant is not entitled to rely on exclusion of [the]
period required for [the] preparation and delivery of the copy
of the proceedings to the appellant for contravening the
requirement of rule 90 (3) of the Rules.
At the hearing of the two sets of the preliminary objection, Mr. Daimu Halfan,
learned counsel, who teamed up with Mr. Mashaka Ngole, learned counsel, to
represent the respondent, argued the points raised in the first set as well as the
first point in the second set. He abandoned the second point in the second set.
We have carefully examined the record of appeal, the memorandum of appeal
and taken account of the contending oral arguments of the learned counsel for
the parties. Beginning with the challenge against the first three grounds of
appeal, it is 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, which
stipulates as follows:
Any party to the proceedings in the Labour Court may
appeal against the decision of that Court to the Court of
Appeal of Tanzania on a point of law only. [Emphasis
added]
117
At this point, it is pertinent to determine what a "point of law" entails. Certainly,
it is not the first time that the Court is confronting such a question. Recently, in
yet to be reported cases of Atlas Copco Tanzania Limited v. Commissioner
General, Tanzania Revenue Authority, Civil Appeal No. 167 of 2019; and
Appeal No. 14 of 2007, the Court defined the phrase "matters involving
questions of law only" upon which a party could appeal to the Court from any
decision of the Tax Revenue Appeals Tribunal in terms of section 25 (2) of the
Tax Revenue Appeals Act, Cap. 408 R.E. 2006 (now R.E. 2019 (henceforth "the
TRAA''). Having referred to its earlier decision in Insignia Limited v.
Commissioner General, Tanzania Revenue Authority, Civil Appeal No. 14 of
2007 (unreported), the Court reviewed the decision of the Supreme Court of
India in Meenakshi Mills, Madurai v. The Commissioner of Income Tax, Madras
(1957) AIR 49, 1956 SCR 691 as well as that of the Supreme Court of Kenya in
Gatirau Peter Munya v. Dickson Mwenda Kithinji & Three Others [2014] eKLR
on what amounts to a question of law as opposed to a matter of fact. The Court,
then, defined the phrase "question of law" as follows:
Thus, for the purpose of section 25 (2) of the TRAA, we think,
a question of law means any of the following: first, an issue
on the interpretation of a provision of the Constitution, a
statute, subsidiary legislation or any legal doctrine on tax
revenue administration. Secondly, a question on the
application by the Tribunal of a provision of the Constitution,
a statute, subsidiary legislation or any legal doctrine to the
evidence on record. Finally, a question on a conclusion
arrived at by the Tribunal where there is failure to evaluate the
evidence or if there is no evidence to support it or that it is so
perverse or so illegal that no reasonable tribunal would arrive
at it.
We are of the firm view that the above definition would apply, mutatis mutandis,
to the instant appeal concerning a labour dispute. Guided by the said definition,
we now answer the issue whether the three grounds raised in this appeal involve
points of law.
Beginning with the first ground, we think that its gravamen is clearly
jurisdictional. We are persuaded by Dr. Kapinga that this ground raises a point
of law as it faults the learned High Court Judge for not addressing her mind to
118
the issue whether the Referral Form CMA F1 was filed in accordance with
section 86 (1) and (2) of the ELRA requiring a party referring a dispute to the
CMA to satisfy the CMA that a copy of the referral has been served on the other
parties to the dispute. Evidently, the said ground had its origin from the CMA's
ruling shown at pages 205 to 207 of the record of appeal dismissing the
appellant's preliminary objection to the competence of the referral. In our view,
the determination of this ground would entail interpretation of section 86 (1) and
(2) of the ELRA as well as its application to the facts of the case on the question
whether the referral form was duly filed and served.
Equally unmerited is the complaint regarding the second ground of appeal. The
essence of this ground is a contention that the Honourable High Court Judge
erred in law in holding that the appellant failed to establish a valid reason for
terminating the respondent's employment. This is evidently a point of law fitting
neatly within section 37 (1) and (2) of the ELRA, which not only places on the
employer the onus of proving validity and fairness of termination of employment
but also defines what a valid reason for termination is:
37. - (1) It shall be unlawful for an employer to terminate the

employment of an employee unfairly.
(i) related to the employee's conduct,
capacity or compatibility; or
(ii) based on the operational requirements of
the employer and
(c) that the employment was terminated in accordance with a
fair procedure.
(3) It shall not be a fair reason to terminate the
employment of an employee -
(a) for the reason that the employee -
(i) discloses information that the employee is entitled or
required to disclose to another person under this Act or any
other law;
119
(ii) fails or refuses to do anything that an employer may
not lawfully permit or require the employee to do;
(iii) exercises any right conferred by agreement, this Act
or any other law;
(iii) belongs, or belonged, to any trade union; or
(iv) participates in the lawful activities of a trade union,
including a lawful strike;
(b) for reasons -
(i) related to pregnancy;
(ii) related to disability; and
(iii) that constitute discrimination under this Act.
(4) ) In deciding whether a termination by an employer
is fair, an employer, arbitrator or Labour Court shall take into
account any Code of Good Practice published under section
99.
The second ground, in our view, questions the application of the above
provisions to the facts of the case in the High Court's finding that no valid reason
for termination had been established. It is a pure point of law.
The challenge against the third ground of appeal is no better. It is similarly
desolate. As rightly argued by Dr. Kapinga, this ground, on its face, faults the
learned High Court Judge for a misdirection on the evidence on record. As it is
apparent that the appellant alleges that the respondent admitted to have
committed certain charged offences, it is indeed a question of law, not fact,
whether the appellant still had the onus to produce documentary evidence in the
form of the printouts alluded to before the CMA to prove the offences. Here the
contention is that the commission of the said offences was a fact that in law
required no proof. We thus affirm that the third ground of appeal is a suitable
point of law.
Based on the foregoing discussion, we find that the three impugned grounds of
appeal present proper points of law. We thus overrule the first point of the first
set of preliminary objections.
We now turn to the complaint that the record of appeal is deficient due to the
omission of a number of core documents. It is noteworthy that Dr. Kapinga
admitted that, indeed, all the documents cited by the respondent to be missing
were omitted including the alleged certificate of delay dated 23rd May, 2019. We
120
wish to confirm that the cited documents are certainly missing but that the appeal
was lodged on the certificate of delay dated 11th December, 2019, which forms
part of the record. The sticking issue, then, is whether the aforesaid omission has
a deleterious effect to the competence of the appeal.
Having examined the record of appeal, we go along with Dr. Kapinga that in
terms of rule 96 (1) and (2) of the Rules the omitted documents are not core.
These mainly cover the initial certificate of delay dated 23rd May, 2019 which
seems to have been subsequently cancelled and replaced as well as documents
on the transfer of the proceedings from the High Court at Tanga to the High
Court, Labour Division at Dar es Salaam. These documents are not necessary for
the proper determination of the points of controversy in the appeal. Certainly,
the appeal was not lodged upon the above cited initial certificate of delay but the
one dated 11th December, 2019 at page 148 of the record of appeal. None of the
issues raised in the grounds of appeal questions the propriety of the transfer of
the proceedings. The second point of preliminary objection in the first set is
similarly devoid of merit.
Turning to the second set of the preliminary objection, we recall that Dr. Kapinga
demurred that the notice thereof was served upon him on Friday 28th May, 2021
in breach of rule 107 (1) of the Rules requiring a preliminary objection to be
raised upon three clear days' notice before the hearing, in this case the hearing
took place on 31st May, 2021. At first, we wish to affirm that the appellant was
entitled to a three clear days' notice of the preliminary objection in terms of rule
107 (1) of the Rules. Section 60 (1) (f) of the Interpretation of Laws Act, [Cap
1 R.E. 2019] defines the phrase "clear days" thus:
60. - (1) In computing time for the purposes of a written

law-
(a) to (e) [Omitted]
(f) where there is a reference to a number of clear days or
''at least" or "not less than" a number of days between two
events, in calculating the number of days there shall be
excluded the days on which the events happen;
(g) to (h) [Omitted] [Emphasis added]
121
In terms of the above provision, the notice served on the appellant on 28th May,
2021 was insufficient because there were only two clear days between its service
on the appellant and the hearing scheduled on 31st May, 2021. We, therefore,
agree with Dr. Kapinga that the respondent contravened rule 107 (1) of the Rules
in filing and serving the notice. On account of this infraction, Dr. Kapinga urged
us to refrain from entertaining the preliminary objection but then proceeded to
reply to Mr. Halfan's submissions on its substance. It is of note that Mr. Halfan
did not submit on this issue in his rejoinder.
While we have affirmed the appellant's entitlement to sufficient notice in terms
of rule 107 (1) of the Rules so as to prepare a proper response to the points raised
and avoid her being taken by surprise, we think that the respondent's
contravention would not vitiate or deflate the substance of the points raised in
the notice. If Dr. Kapinga needed more time to prepare, he should have pleaded
for it and we would have undoubtedly considered the prayer auspiciously. Given
that Dr. Kapinga was prepared to proceed with oral argument on the points
raised, we would reject his plea that the second set of preliminary objections
should not be entertained.
The above said, we now address the substance of the sole point in the second set.
On the issue at hand, it is common ground that the impugned certificate of delay
erroneously reckoned the exclusion of the period for the preparation and delivery
of the copy of the High Court's proceedings from 31st May, 2018 instead of 1st
June, 2018 when the request for the copy was made to the High Court along with
the filing of the notice of appeal. We also agree with Mr. Halfan that the total
number of excluded days up to 11th December, 2019 when the certificate was
issued should have been stated but it was not. We would also add that the
impugned certificate was purportedly issued by the High Court, Labour Division
at Tanga instead of the High Court, Labour Division at Dar es Salaam which
heard and determined the matter following the transfer of the proceedings.
The above patent errors, in our view, vitiate the certificate of delay - see the
unreported decisions of the Court in M/S Flycathcher Safaris Ltd. v. Hon.
Minister for Lands and Human Settlements Development and Another, Civil
Appeal No. 142 of 2017; Hamisi Mdida and Another v. The Registered Trustees
of Islamic Foundation, Civil Appeal No. 59 of 2020; and Ecobank Tanzania
Limited v. Future Trading Company Limited, Civil Appeal No. 142 of 2017. It
is, therefore, pertinent to ask what would be the result from the aforesaid defects?
122
As we held in Ecobank Tanzania Limited (supra), we do not think the errors
complained of should result in the appellant being automatically barred from
benefitting from the exclusion of time under rule 90 (1) of the Rules. In our view,
the misstatement of the date for reckoning the exclusion in the present matter is
an innocuous typographical error. Similarly, the omission to state the total
number of excluded days is clearly inoffensive. At any rate, the defects gave no
undue advantage to the appellant bearing in mind that the appeal was duly lodged
on 5th February, 2020, four days before the expiry of the prescribed limitation
period of sixty days. In the premises, in order to facilitate a just and proportionate
solution to the defects in terms of the overriding objective under section 3A and
3B of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2019] and rule 2 of the
Rules we find it fitting to grant the appellant an opportunity to seek rectification
of the certificate of delay from the Registrar, High Court, Labour Division at Dar
es Salaam.
Consequently, we order that a rectified version of the certificate of delay be
lodged in form of a supplementary record of appeal within thirty days from the
date of delivery of this ruling. In the meantime, the hearing of the appeal is
adjourned to a date to be fixed by the Registrar.
Appellant to seek rectification of certificate of delay
COSTANTINE VICTOR JOHN v. MUHIMBILI NATIONAL

HOSPITAL
AT DAR ES SALAAM
(MKUYE, KENTE, and KIHWELO, JJ.A.)
CIVIL APPLICATION NO. 188/01 OF 2021

(Arising from the Decision of the Court of Appeal of Tanzania at Dar es
Salaam, Mbarouk, Mwarija and Mziray JJ.A., dated 25th day of January, 2016
in Civil Application No. 44 of 2013).
123
Review – grounds for review – factors to be considered under rule 66(1) of the
Rules.
Court practice – administration of justice – rules governing finality of litigation
in review.
This is an application for review of the Ruling of this Court, which revised and
set aside the decisions of both Labour Court and the CMA and found that the
applicant's termination was based on justifiable reasons. The application is
brought under Rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009. The
main issue before the court is whether the application before it has merit.
Held: (i) An application for review is really meant to address the irregularities
in a decision sought to be reviewed which have resulted into injustice to the
aggrieved party. Thus, it is not an appeal in disguise to a party who is dissatisfied
with the decision of the Court.
(ii) Public policy demands that in the proper functioning justice system, litigation
must come to an end and that a judgment of the final court in the land should be
final and its review must be an exception.
Application allowed
Cases referred to
(1) Muhidin Ally @ Muddy and 2 Others v. Republic, Criminal Appeal No. 2
of 2006
(2) Philip Tilya v. Vedasto Bwogi, Civil Application No. 546/01 of 2017
(3) Attorney General v. Mwahezi Mohamed and 3 Others, Civil Application
No. 314 /12/ of 2020
(4) Peter Kindole v. Republic, Criminal Application No. 3 of 2011
(5) Roshan Meghee & Company Limited v. Commissioner General of
Tanzania Revenue Authority [2017] T.L.R. 482
(6) African Marble Company Limited (AMC) v. Tanzania Saruji Corporation
TSC, Civil Application No. 132 of 2005
(7) Chandrakant Joshubhai Patel v. Republic, [2004] TLR 218
(8) Sudy Mashana @ Kasala v. Republic, Criminal Application No. 2/09
(9) Karim Kiara v. Republic, Criminal Application No. 4 of 2007;
(10) Japhet Msigwa v. Republic, Criminal Application No. 7 of 2011; and
(11) Eusebia Nyenzi v. Republic, Criminal Application No. 6 of 2013
124
(1) Rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009; and
(2) Section 12 (c) of the Muhimbili Nationai Hospital Act No. 3 of 2002.
Mr. Mabula, for Applicant

Ms. Mtulo, Senior State Attorney, Ms. Mcharo and Mr. Mohamed, State
Attorneys, for Respondent.
RULING OF THE COURT

24th October, 2022
MKUYE, J.A.: This is an application for review of the Ruling of this Court in
Civil Application No. 44 of 2013 (Mbarouk, J.A., Mwarija, J.A., and Mziray,
J.A.) which revised and set aside the decisions of both Labour Court and the
Commission for Mediation and Arbitration (the CMA) and found that the
applicant's termination was based on justifiable reasons. The application is
brought under Rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the
Rules) and is supported by an affidavit deponed by Constantine Victor John, the
applicant. Apart from that, he has filed his written submissions and list of
authorities. In the notice of motion, the applicant has fronted four grounds as
follows:
(a) That the decision was based on a manifest error on the face of the
record because the court failed to consider that Exhibit DS which
contravened section 12 (c) of the Muhimbili Nationai Hospital Act
No. 3 of 2002 and regulation 10.4.3 and 10.6.b of the Kanuni za
Wafanyakazi, Hospitali ya Taifa ya Muhimbili.
(b) That the decision was based on a manifest error on the face of the
record as the Court in Civil Application No. 44 of 2013 did not
consider that Exhibit D5 qualifies not to be called the termination
letter but a mere information for abscondment
(c) That the decision was based on a manifest error on the face of the
record as the Court in Civil Application No. 44 of 2013 regarding
the (sic) considered unexplained 7 days between 19/09/2009 and
25/09/2009 without considering weekends, public holidays and
sickness excuses as per CMA records.
125
(d) That the decision was based on a manifest error on the face of the
record as the Court in Civil Application No. 44 of 2013 failed to
consider that the applicant reported at work on 24/09/2009.
In paragraphs 10, 11, 12 and 13 of the applicant's affidavit in support of the

application, the applicant has reiterated what is stated in the grounds for the
application and in paragraph 14 of the said affidavit he has insisted that, had the
Court in Civil Application No. 44 of 2013 considered some material
irregularities with Exhibit D5, it would have decided in favour of the applicant.
On the other side, the respondent in resisting the application has filed an affidavit
in reply and a list of authorities. When the application was called on for hearing,
the applicant was represented by Mr. Josephat Mabula, learned advocate
whereas the respondent had the services of Ms. Alice Mtulo, learned Senior State
Attorney assisted by Ms. Debora Mcharo and Mr. Rashid Mohamed, both
learned State Attorneys.
Upon being availed an opportunity to amplify the grounds of application, Mr.
Mabula reiterated that the Court did not consider that Exhibit DS which was used
to determine the applicant's case was not qualified to be so used since the
applicant was denied a chance to be heard. He pointed out that there was no
Disciplinary Committee convened to determine his fate as per the Kanuni za
Wafanyakazi, Hospitali ya Taifa ya Muhimbili. To support his argument, he cited
to us the case of Muhidin Ally @ Muddy and 2 Others v. Republic, Criminal
Appeal No. 2 of 2006 (unreported) where it was reiterated that the Court may
review its decision on among other grounds that a party has been wrongly
deprived of an opportunity to be heard.
Mr. Mabula contended further that although the Court at page 13 of its Ruling
stated that the applicant failed to account for seven (7) days from 07/09/2009 to
25/09/2009, among those days there were weekend and public holidays which
were not excluded. He elaborated that 19/09/2009 and 20/09/2009 were Saturday
and Sunday respectively; whereas 21/09/2009 and 22/09/2009 were Eid el Fitr
holidays. As such he said, there remained only three (3) days which were
unaccounted for. To fortify his submission, he referred us to the case of Philip
Tilya v. Vedasto Bwogi, Civil Application No. 546/01 of 2017 (unreported) page
6. He said, after excluding those weekend and public holidays there remains
three (3) days which did not warrant termination of his employment since,
according to Rule 9 item 1 of the Employment and Labour Relations (Code of
126
Good Practice) Rules an employee's employment can be terminated if he
absconds for more than five (5) days.
In this regard, he prayed to the Court to find that the application merited and
grant it.
In reply, Ms. Mtulo in the first place sought to adopt their affidavit and written
submissions to form part of their oral submission. Having done so, she reiterated
that the applicant has filed an application under Rule 66 (1) (a) of the Rules
which means that it is based on a manifest error on the face of the record which
has occasioned miscarriage of justice. However, looking at the grounds of review
in totality, she said, they seek this Court to re-assess the evidence. She elaborated
that, the contention that the Court failed to consider Exhibit D5 which was in
contravention of section 12 (c) of the Muhimbili National Hospital Act and rules
10.4.3 and 10.6.b of the Kanuni za Wafanyakazi Hospitali ya Taifa ya Muhimbili
requires new evidence and insisted that the fact that the Court's decision is
erroneous is not a good ground for review. To bolster her argument, she cited
the case of Attorney General v. Mwahezi Mohamed and 3 Others, Civil
Application No. 314 /12/ of 2020 (unreported).
In relation to ground no. 2 that Exhibit D5 did not qualify to be a termination
letter, Ms. Mtulo contended that it is not a ground for review as it entails the
Court to re-assess the evidence which is contrary to the provisions of Rule 66 (1)
(a) of the Rules. To support her argument, she referred us to the case of Shadrack
Balinego v. Fikiri Mohamed @ Hamza and Others, Civil Application No. 25/08
of 2018 page 19 (unreported) where the Court cited with approval the case of
Peter Kindole v. Republic, Criminal Application No. 3 of 2011 (unreported) and
stated as follows:
The applicant is merely asking the Court to revisit evidential
legal and factual matters. This is synonymous with asking the
Court to sit on appeal against its own decision. This is not
acceptable as the circumstances for review are clearly set out
in Rule 66 (1) of the Court Rules.
As regards the third ground of review that the Court failed to consider the
weekend and public holidays in between 19/09/2009 and 25/09/2009, the learned
Senior State Attorney contended that the said ground also requires the Court to
re-evaluate evidence. At any rate, she submitted that the Court dealt with it as
shown at page 13 of the judgment and held a view that the applicant ought to
127
have obtained authorization of his absence rather than informing his employer
about his absence from duty even if the duration of supplementary examination
is to be excluded (07/09/2009 to 25/09/2009) as seven days still remained
unexplained. She was of the view that, this would have required the Court to go
back to the evidence not brought earlier on.
With regard to the applicant's complaint that he was denied an opportunity to be
heard, Ms. Mtulo argued that it was a new ground which was brought as an
afterthought. She added that, it does not fall under the provisions of Rule 66 (1)
(a) of the Rules based on apparent error on the face of the record and which is
likely to occasion miscarriage of justice to which the applicant has failed to show
it. In support of her argument, she cited the case of Shadrack Balinego (supra).
Ms. Mtulo went on to distinguish the cases of Muhidin Ally @ Muddy (supra)
and Philip Tilya's case (supra) in that in the former case the issue was
identification and the error was quite apparent not requiring evidence; while in
the latter case the issue related to filing of supplementary record on the date
which fell during Eid el Fitr holiday.
In the end, she contended that all grounds do not fall within the ambit of Rule 66
(1) of the Rules. In concluding their submission, Mr. Mohamed added that all
grounds needed evidence. He, therefore, prayed to the Court to find the grounds
are not ground for review and dismiss the application.
In rejoinder, Mr. Mabula insisted that the grounds are within the ambit of Rule
66 (1) (a) of the Rules since the Court would not have acted as it did had all the
circumstances of the matter been known to it which to him are exceptional case.
With regard to ground No. 1, it was Mr. Mabula's submission that one, the Court
did not know that the applicant was irregularly terminated. Two, that the
applicant's employment was not terminated. Three, it was an inadvertence on
the part of the Court not to consider and exclude the Saturday, Sunday and public
holidays and that applicant ought not to be terminated for failure to go to work
for three days. He maintained that the ground on the denial of right to be heard
was not new since it violated the Kanuni za Wafanyakazi, Hospitali ya Taifa ya
Muhimbili.
When probed by the Court on whether the ground relating to right to be heard
was formally brought, he conceded that it was not but he urged the Court to
invoke the overriding objective principle and consider it.
128
We have examined and considered the submissions by both parties and the entire
record of the application. We think we are now in a position to determine
whether or not the application before us is meritorious.
Rule 66 of the Rules empowers this Court to review its own decisions. The
parameters under which the Court can exercise such power are provided for
under the said Rule as follows:
66(1) The Court may review its judgment or order, but no
application for review shall be entertained except on the
following grounds:
(a) the decision was based on a manifest error on the face of
the record resulting in the miscarriage of justice; or
(b) a party was wrongly deprived of an opportunity to be
heard; or
(c) the court's decision is a nullity; or
(d) the court had no jurisdiction to entertain the case; or
(e) the judgment was procured illegally, or by fraud or
perjury.
The conditions set out under the above cited provision were emphasized in the
case of Roshan Meghee & Company Limited v. Commissioner General of
Tanzania Revenue Authority [2017] T.L.R. 482 in which the Court stated that:
The Court has time and again held that an application for
review will be entertained only if it falls within the grounds
stipulated under the provisions of Rule 66 (1) of the Court of
Appeal Rules.
In this case, the applicant has predicated his notice of motion under paragraph
(a) of sub rule (1) of Rule 66. It means, therefore, that as it was argued by Ms.
Mtulo, there is a manifest or apparent error on the face of the record which
resulted in the miscarriage of justice.
As to what entails a manifest error on the face of the record, the law is now
settled. It was well stated in the case of African Marble Company Limited (AMC)
v. Tanzania Saruji Corporation TSC, Civil Application No. 132 of 2005
(unreported) as follows:
An error apparent on the face of the record must be such as can
be seen by one who rides and reads, that is, an obvious and
129
patent mistake and not something which can be established by
a long-drawn process of reasoning on points on which there
may conceivably be two opinions…
(See also Chandrakant Joshubhai Patel v. Republic, [2004] TLR 218).
It should be also emphasized here that, an application for review is really meant
to address the irregularities in a decision sought to be reviewed which have
resulted into injustice to the aggrieved party. Thus, it is not an appeal in disguise
to a party who is dissatisfied with the decision of the Court- See Patrick Sanga
v. Republic, Criminal Application No. 8 of 2011 (unreported) and Charles
Barnabas v. Republic, Criminal Application No. 13 of 2009 (both unreported).
More importantly, this is intended to restrict the Court from sitting on appeal
against its own decisions in compliance with the public policy that litigation
must come to an end - (See Chandrakant Joshubhai Patel's Case (Supra)).
In this application, the grounds in the notice of motion, affidavital information
(paragraphs 10, 11, 12, and 13) and oral submissions by Mr. Mabula are basically
to the effect that the decision of the Court was based on manifest error on the
face of the record because of one, the courts failure to consider Exh. D5 which
contravened section 12(c) of Muhimbili National Hospital Act, No. 3 of 2003
and rule 10.4.3 and 10.6. b of the Kanuni za Wafanyakazi, Hospitali ya Taifa ya
Muhimbili; two failure to consider that Exh. D5 did not qualify to be called the
termination letter but an information for abscondment; three failure to consider
that the unexplained seven days among them were weekend and public holidays;
and four that the court did not consider that the applicant reported at work on
24/9/2009.
However, having examined the said grounds, we are in total agreement with Ms.
Mtulo that the said grounds are not grounds of review envisaged under Rule 66
(1) (a) of the Rules as they require the Court to re-asses the evidence. The
contention that the Court failed to consider that Exh D5 contravened section 12
(c) of the Muhimbili National Hospital Act and rule 10.4.3 and 10.6.b of the
Kanuni za Wafanyakazi, Hospitali ya Taifa ya Muhimbili; or that the said Exhibit
did not qualify to be a termination letter require to revisit the evidence. This also
applies to the claim that the applicant had reported to work on 24th September
2009. In other words, they do not depict an obvious or patent error which can be
established without a long-drawn process of reasoning whereby there may be
two opinions - (See African Marble Company Limited (supra) and Chandrakant
Joshubhai Patel (supra).
130
What is clear in this application, the applicant is making an attempt to challenge
the decision of the Court based on evidence which is not envisaged in a review.
Thus, in the case of Abel Mwamwezi v. Republic, Criminal Application No. 1 of
2013 (unreported) when the Court was confronted with akin scenario, it had this
to say:
A ground of review inviting the Court to consider any evidence
afresh, amounts to inviting the Court to determine an appeal
against its own judgment. This shall not be allowed.
(See also Sudy Mashana @ Kasala v. Republic, Criminal Application No. 2/09
of 2018 (unreported).
It is noteworthy at this juncture that public policy demands that in the proper
functioning justice system, the litigation must come to an end and that a
judgment of the final court in the land should be final and its review must be an
exceptional -See Karim Kiara v. Republic, Criminal Application No. 4 of 2007;
Japhet Msigwa v. Republic, Criminal Application No. 7 of 2011 and Eusebia
Nyenzi v. Republic, Criminal Application No. 6 of 2013 (all unreported).
Unfortunately, this is not the case in the matter at hand.
We note that Mr. Mabula in the course of his submission forcefully argued that
the applicant was denied the right to be heard as he was not taken to the
Disciplinary Committee before his termination. However, we agree with the
learned Senior State Attorney's view that this is a new ground as it is not pegged
under any provision of Rule 66(1) of the Rules.
At any rate, we have gone through section 12 (c) of the Muhimbili National
Hospital Act and we have observed that it establishes the disciplinary bodies
among them being the head of department to be a disciplinary authority to all
other employees of the Hospital while the Board is the final appellate authority
in that respect. The said provision, however, does not specifically provide for the
requirement for the applicant to be taken there. We think this argument may have
been misconceived at the moment.
We have also considered the argument raised by Mr. Mabula that Court might
not have considered that some days of absenteeism were weekend and public
holidays. According to section 59 (1) (g) of the Evidence Act, [Cap 6 R.E. 2019],
the Court is mandatorily required to take judicial notice on among others the
division of time, the geographical division of the world and public festivals,
feasts and holidays notified in the Gazette.
131
In the case of Philip Tilya (supra) cited by Mr. Mabula, the Court took judicial
notice that the date in which the appellant ought to file supplementary record of
appeal was a public holiday upon being satisfied itself from IPP Media Website
and found that by filing it on 28/6/2017 instead of 26/6/2017 the same was filed
within time.
In this case, the applicant1s employment was terminated basically on the ground
that he had absconded from work for seven days. We have gone through the
Habari Leo, Mwananchi and Mtanzania Newspapers issue Numbers 01006,
7575 availed to us all dated 21/9/2009 showing His Excellency President Jakaya
Kikwete attending Eid el Fitr festival at Mnazimmoja on the previous day
(20/9/2009) (Sunday). Apart from that, we have perused the copy of 2009
calendar which, although does it not show clearly whether 20/9/2009 and
21/9/2009 were public holidays, it has revealed that 19/9/2009 and 20/9/2009
were Saturday and Sunday respectively. It means, therefore, that Eid el Fitr was
celebrated on 20/9/2009 and 21/9/2009 as opposed to Mr. Mabula's suggestion
that it was on 21/9/2009 and 22/9/2009. From this investigation, it follows that
the applicant1s days of absenteeism were four (4) instead of three (3) as was
suggested by Mr. Mabula.
In this regard, being guided by the above cited authority and having in mind rule
9 item 1 of the Code of Good Practice Rules, we are of the considered view that
the applicant's employment ought not to have been terminated since his absence
from work without permission or without acceptable reason was not more than
five working days. We are, therefore, in agreement with Mr. Mabula that had the
Court been availed with this information, it would not have arrived at that
conclusion.
In the event, that said and done, we allow the application and review our decision
dated 8/2/2013. Instead, we uphold the decisions of the Labour Court and CMA.
It is so ordered.
Application allowed
DAVID NZALIGO v. NATIONAL MICROFINANCE BANK PLC

AT DAR ES SALAAM
132
(MWARIJA, WAMBALI and KOROSSO. JJA.)
(Appeal from the Judgment of the High Court of Tanzania, Labour Division at
Dar es Salaam, Rweyemamu, J., dated 21st April, 2013 in Labour Revision No.
347 of 2013)
Probation period – Employee worked beyond the probationary period in his
employment without being confirmed – Whether employee was still a
probationary employee.
Probation period - Employee worked beyond the probationary period in his
employment without being confirmed - Whether employee entitled to the reliefs
falling under Patt III, Sub- Part E of Employment and Labour Relations Act, Act
No. 6 of 2004.
The appellant was employed by the respondent between 1st July, 2010 and 13th
January. The substance of the contract being that the respondent and the
appellant would employ the appellant on permanent terms to perform duties as
a Deputy Company Secretary. Clause 1 of the contract expressed that the starting
date of employment was 01st July 2010, and that for the first 6 months of
employment, the appellant was to be on probation and thereafter undergo a
review, the expected aftermath being either confirmation upon being positively
assessed.
Towards the end of the probation period, the assessment of the appellant was
undertaken though was strongly disputed by the appellant. Thereafter, on the 13th
January, 2011 the appellant tendered a notice of resignation alleging constructive
termination and believing he was forced to resign, instituted a labour case at the
Commission for Mediation and Arbitration (CMA) complaining of unfair
termination. The CMA entered an award in the appellant's favour. The
respondent was dissatisfied with the award given to the appellant. The
respondent filled a revision case in the Labour Court which ended with a Ruling
in favour of the respondent. Dissatisfied with the Ruling the appellant filled this
appeal with the Court.
Held: (i) Confirmation of an employee on probation is subject to fulfilment of
established conditions contained in the letter of employment and expiration of
the set period of probation does not automatically lead to change of status from
a probationer to a confirmed employee.
133
(ii) Probationary period is there to allow one to see if one enjoys working with
the employer and whether the employee matches the skills and abilities for the
job recruited and thus where resignation is before "results of the interview' are
out, nor there being a confirmation letter but the probationer continues with
employment, the probationary status of the employee still remains in effect.
(iii) The import of section 35 of ELRA though it addresses the period of
employment and not the status of employment, the fact that a probationer is
under assessment and valuation can in no way lead to circumstances that can be
termed unfair termination. It suffices that when assessing this provision, it is a
provision that envisages an employee fully recognized by an employer and not
a probationer.
Appeal dismissed
Cases referred to
(1) Stella Temu v Tanzania Revenue Authority, [2005] T.L.R;
(2) Mtenga v University of Dar es Salaam (1971) HCD 247;
(3) John Morris Mpaki v. NBC Ltd and Ngalagila Ngonyani, Civil Appeal
No. 95 of 2013;
(4) Abbas Sherally v. Abdul Sultan Haji Mohamed Fazalboy, Civil

(1) Section 35 of employment and Labour Relations Act, Act No. 6
of 2004;
(2) Rule 7(2)(b) of Employment and Labour Relations (Code of Good
Practice) Rules, GN 42 of 2007 (Code of Good Practice Rules);
Mr. Ngole, for Appellant

Prof. Binamungu, for Respondent

9th September, 2019
134
KOROSSO, J.A.: The appellant David Nzaligo being aggrieved by the decision
of the High Court, Labour Division in the above-mentioned Labour revision filed
this appeal on the following grounds:
(a) That the Honourable Judge erred in law and fact in
arriving at a decision that the applicant; an employee who
has worked beyond probationary period in his
employment without being confirmed is still a
probationary employee.
(b) That the Honourable Judge erred in law and fact in
arriving into the decision that the applicant, an employee
who has worked beyond his probationary period in his
employment without being confirmed is not entitled to
the reliefs falling under Patt III, Sub- Part E of
employment and Labour Relations Act, Act No. 6 of
2004.
(c) That the Honourable Judge erred in law and fact in
arriving into the decision that the applicant, an employee
who has worked for more than six months for the same
employer in his employment without being confirmecl is
not entitled to the relief's falling under Patt III, Sub-Part
E of employment and Labour Relations Act, Act No. 6 of
2004.
(d) That the Honourable Judge erred in law and fact in raising
and determining the probation status of the applicant suo
motu, which was not a ground of Revision, without
affording the patties the right to submit for the same.
The appellant and respondent through their respective counsel duly filed written
submissions that were adopted upon prayer to the Court by the counsel for the
parties and became part of overall submissions for each party respectively.
For better understanding of the essence of this appeal we find it pertinent to
briefly narrate the background. The appellant was employed by the respondent
and this given credence by an employment contract signed on 30th June 2010 by
both the appellant and the respondent for the period between 1st July, 2010 and
13th January, 2011 as seen at page 59 of the record of appeal. The substance of
the said contract being that NMB PLC Banking Company (the respondent) and
David Nzaligo (the appellant) entered into an agreement where the respondent
135
was to employ the appellant on permanent terms to perform duties as a Deputy
Company Secretary. Clause 1 of the contract expressed that the starting date of
employment was 01st July 2010, and that for the first 6 months of employment,
the appellant was to be on probation and thereafter undergo a review, the
expected aftermath being either confirmation upon being positively assessed.
When coming to the end of the probation period, the assessment of the appellant
envisaged in the contract was undertaken as revealed at page 63 of the record of
appeal. The assessment was strongly disputed by the appellant. Thereafter, on
the 13th January, 2011 the appellant tendered a notice to resign and believing he
was forced to resign, instituted a labour case at the Commission for Mediation
and Arbitration (CMA) in Dar es Salaam (CMA/DSM/KIN/101/11/261)
complaining of unfair termination. The CMA entered an award in the appellant's
favour being satisfied that his resignation was a result of the respondent's
conduct (against the appellant) which led to intolerable working conditions for
the appellant, and that the ill treatment which the appellant was subjected to was
within the purview of Rule 7(2)(b) of Employment and Labour Relations (Code
of Good Practice) Rules, GN 42 of 2007 (Code of Good Practice Rules).
The respondent was dissatisfied with the award given to the appellant by CMA
and at first filed Labour Revision No. 219 of 2012 that was later withdrawn and
then applied and was granted leave to file an amended Labour Revision, that is,
Labour Revision No. 347 of 2013 at the High Court Labour Division, Dar es
Salaam which ended with a Ruling in favour of the respondent. The High Court
(as seen at page 244 of the appeal record) held that:
since an employee on probation is not covered under the unfair termination
provisions Part E of the ELRA, and I am not aware of any decision interpreting
the position under the ELRA differently, I concluded that fair termination
principles; which as demonstrated above, extends to employees who have been
forced to resign (constructive termination) do not apply to employees on
probation.
On the date when this appeal came for hearing, Mr. Mashaka Ngole learned
Advocate represented the appellant while Prof. Cyriacus Binamungu learned
Advocate entered appearance for the respondent. The learned counsel for the
appellant started by submitting that he had nothing substantive to state or amplify
then, and that the filed written submissions should suffice preferring to await
submissions from the respondent counsel and questions from the Court to
respond accordingly.
136
Having heard and considered both oral and written rival submissions, we find
that there are various matters which are not contentious already presented herein
above. Such facts include; the fact that the appellant was employed by the
respondent on terms of employment as per the employment contract and the date
of signing the contract, date of start of employment, the six months’ period of
probation for the appellant and date of appellant's resignation. It is important to
note that the sanctity of the employment contract cannot be gainsaid. In the
present appeal the appellant and the respondent agreed to be bound by the
contract under the terms and conditions therein and also accepted the rights and
duties, responsibilities and obligations on either party.
In the cause of determination of the four grounds of appeal to be done
sequentially, some contentious issues will also be addressed. Thus, starting with
the first ground of appeal, we find the relevant issue to be determined here is
whether the appellant was still a probationer at the time he resigned. The
appellant is aggrieved by the finding of the High Court that an employee on
probation does not assume employment status on expiry of period of probation,
that is, expiration of the specified period of probation renders such an employee
eligible for confirmation only. As already stated above, there is no doubt that for
the first six months of employment the appellant was on probation. Rule 10 of
the Code of Good Practice Rules states:
10-(1) All employees who are under probationary periods of
not less than 6 months, their termination procedure shall be
provided under the guidelines.
(2) Terms of probation shall be made known to the employee
before the employee commences employment
(3) The purpose of probation is normally to enable the
employer to make an assessment of whether the employee is
competent to do the Job and suitable for employment
(4) The period of probation should be of a reasonable length of
not more than twelve months, having regard to factors such as
the nature of the job, the standards required, the custom and
practice in the sector.
In the present appeal, it is evident that the appellant resigned before being
confirmed, a finding of fact by the judge. From the available evidence clause 2
of the appellant's contract specifies there being a probation of six months,
starting from the 1st July, 2010 and in effect meant it was to end on the 31st
137
December, 2010. There is no doubt that the appellant took part in the assessment
process, and it is also a fact that up to the time he resigned, he was yet be
confirmed. The employment contract clause 2 provides that confirmation to
permanent employment shall be upon fulfilment of the certain conditions
highlighted therein and that's when a letter confirming first appointment will be
issued, thus in effect we find this clause inferring that confirmation is not
automatic. Clause 2 provides:
2. Terms of Employment: The starting date of employment is
01st July 2010. The first 6 months of
Ø employment constitute a probationary period, during which
time NMB PLC will review the Employees performance.
Confirmation to permanent employment will depend on the
following:
Ø Employees good working performance Satisfactory
medical report issued by an authorized Medical Doctor
appointed by the Bank, confirming that the employee is
medically fit to carry out the challenging and demanding
duties that are assigned to you.
Ø Receipt of positive references from the employees referees
Ø Verification of employees certificates and transcripts with
relevant authority and in case a certificate is found to be
forged, legal measures shall be taken against you the employee
including termination of this appointment. If the entire above
are fulfilled, you will be served with a confirmation letter on
first appointment. In case the agreement is terminated during
the first six months, a written notice of seven (7) days will be
applicable/after this period, thirty (30) days, notice will apply
We found nothing in the record of appeal to contradict the fact that the appellant
left employment prior to receiving the letter of confirmation. The argument by
the appellant's counsel that there being no extension of probation meant the
probation period had expired, does not hold water bearing in mind the fact that
the appellant was still under probation (a probationer) at the time he resigned on
the 13th January, 2011, he was still under assessment and he was yet to be
confirmed. In fact, applying the import of the decision of this Court in Stella
Temu v Tanzania Revenue Authority, [2005] T.L.R. 178 that while under the
138
period of probation, the appellant was under a "practical interview", the
position in this case is that the appellant was still under probation.
The status of employment for an employee under probation who continues
working after expiration of probation period without the employer having made
a decision to confirm or not to confirm was discussed in Mtenga v University of
Dar es Salaam (1971) HCD 247 and stated that, being on probation after expiry
of probation period does not amount to confirmation and that confirmation is not
automatic upon expiry of the probation period. This being the position, we find
no reason to depart from the finding of the High Court on this issue. There is no
evidence that the appellant did fulfill the required conditions to warrant
confirmation and thus move from the status he was, that of a probationer as
required by the contract of employment.
We are therefore of the view that confirmation of an employee on probation is
subject to fulfilment of established conditions and expiration of set period of
probation does not automatically lead to change of status from a probationer to
a confirmed employee. Therefore, since the appellant failed to fulfil the
conditions set, he was still a probationer at the time he resigned and thus the 1st
ground of appeal fails.
Having found that the appellant was still a probationer, we proceed to the 2nd
ground of appeal which we will consider together with the 3rd ground of the
appeal. The gist of contention is that the appellant seeks the Court to consider
whether the fact that he was not confirmed but having worked for over six
months with the respondent, he is entitled to reliefs falling under Part III, Sub
Part E of ELRA. We find that these 2nd and 3rd grounds of appeal require this
Court to consider and determine whether or not the appellant was entitled to
reliefs falling under Part III Sub E Part E of ELRA. As already stated, the High
Court was satisfied that the appellant was harassed and abused during his time
as an employee of the respondent as held by the CMA, which caused him to
resign, but disagreed with CMA findings that there was constructive
termination/unfair termination on the part of the appellant. The High Court held
that the appellant being under probation was not entitled to claim for unfair
termination. Section 35 of ELRA which is in Part III Subpart E, states:
The provisions of this Sub-Part shall not apply to an employee
with less than 6 months' employment with the same employer,
whether under one or more contracts.
139
As stated hereinabove, the High Court judge was of the view that an employee
on probation is not covered under the unfair termination provisions Part E of
ELRA and that fair termination principles extend to employees who have been
forced to resign and that (constructive termination) it does not apply to
employees on probation.
We are aware that for the employee, probationary period is there to allow one to
see if one enjoys working with the employer and whether the employee matches
the skills and abilities for the job recruited and thus where resignation is before
"results of the interview' are out, nor there being a confirmation letter that the
probationer is to continue with employment, applying this to the current appeal,
we are inclined to find that there is no evidence that the conditions of probation
and employment found in clause 2 of the employment contract were fulfilled and
the appellant was still being assessed. Though without doubt the assessment was
delayed but since results of the assessment were yet to be revealed, the
probationary status was still in effect for the appellant as found hereinabove.
Section 35 of ELRA provides that the provision of Part III Sub Part E shall not
apply to an employee with less than 6 months employment with the same
employer, whether under one or more contract, means that a worker with less
than 6 months of employment may not bring an unfair termination claim against
the employee, as held by the judge.
Whilst we are aware of the appellant's counsel submissions that the appellant
probation exceeded the six months threshold by about 11 days prior to resigning,
but since the probation period was yet to be declared to have ended, at the time
the appellant was still on probation, we are of the view that a probationer in such
a situation, cannot enjoy the rights and benefits enjoyed by a confirmed
employee. Having regard to the circumstances of the present case, can it be said
that the said provision covers the appellant's situation, since the record of appeal
reveals that the appellant worked for more than 6 months with the same
employer. We find that the import of section 35 of ELRA though it addresses
the period of employment and not the status of employment, the fact that a
probationer is under assessment and valuation can in no way lead to
circumstances that can be termed unfair termination. It suffices that when
assessing this provision, it is a provision that envisages an employee fully
recognized by an employer and not a probationer.
This being the case, Part III Sub Part E of ELRA being a part addressing unfair
termination of employment, it goes without saying that, taking all the
140
circumstances pertaining in this appeal as alluded to hereinabove, it would have
been prudent if the appellant would have waited for the assessment to be
finalized for him to proceed accordingly and enjoy the benefits of the provision
under dispute, that is, being recognized as an employee of above six months. The
various sections cited by the appellants counsel including section 61 of LIA to
demonstrate that the appellant was an employee of the respondent at the time of
resignation, we find are not applicable since it addresses matters related to
contract of service which is not the case in the present appeal. Particular
circumstances of this case lead to only one conclusion that the appellant was still
a probationer at the time he resigned and cannot benefit from remedies under
Part III E of ELRA. The 2nd and 3rd grounds of appeal therefore, fail for the
reasons stated.
The fourth ground under scrutiny is whether or not the High Court Judge
determined the issue of the status of probation suo motu without according the
parties the right to submit on this, that is, to be heard. The gist of the contention
is that the appellant was not accorded an opportunity to be heard on the issue of
the probation status and that had the appellant been given that opportunity, the
High Court would not have arrived at the decision they had on the said issue,
while the counsel for the respondent asserted that, this was not a new issue for
the parties to consider having been previously discussed at the CMA.
The right to be heard in any proceedings is paramount and this cannot be
overstated enough. The right of a party to be heard before adverse action or
decision is taken against him/her has been stated and emphasized by the Court
in numerous decisions. In, for instance, in Abbas Sherally v. Abdul Sultan Haji
Mohamed Fazalboy, Civil Application No. 133 of 2002 (unreported), it was
held:
That right is so basic that a decision which is arrived at in

violation of it will be nullified even if the same decision would
have been reached had the party been heard, because the
violation is considered to be a breach of the principles of
natural justice.
Again, in John Morris Mpaki v. NBC Ltd and Ngalagila Ngonyani, Civil Appeal
No. 95 of 2013 referred to by the appellant counsel, this Court stated that:
141
The law that no person shall be condemned unheard is legendary. It is trite law
that any decision affecting the rights or interests of any person arrived at without
hearing the affected party is a nullity, even if the same decision would have been
arrived at had the affected party been heard.
In the present appeal, we find no evidence to show that the appellant was denied
the right to be heard on the issue of the status of probation, as it is an issue which
was considered in various ways from the CMA. Perusing though the record of
appeal at pages 167 to 174, in a counter affidavit sworn by the appellant filed on
29th April, 2014 as against the affidavit in support of the amended chamber
summons sworn by Frank Mukoyogo, the Acting Head of Legal and Company
Secretary of the respondent filed on 22nd April, 2014 at pages 118 to 121 of the
record of appeal, in paragraph 2(a) takes note of the deposition of paragraph 2 at
pg 118 stating that:
The applicant was an employer of the respondent effective from
1/07/2010 up to 13/01/2011...
The appellant in paragraph 2(c) at pages 127 of the record
challenged the contents of paragraph 6 of the respondent
supporting affidavit which stated that:
The Respondent stated further that his probation period came to
an end on 10th January 2011 and the assessment was made on
11th January 2011 by his line manager...
Apart from the above evidence there are also final submissions on the part of the
appellant and respondent which allude to this issue. We acknowledge that the
issue was not framed as such, but the contents of the submissions at the CMA
and the affidavital averments at the High Court, reveal that the substance of this
issue was argued and responded to by the appellant.
In effect the above cited excerpts from the record of appeal illustrate that the
issue of the status of the appellant probation was in one way or another averred
in the pleadings before the High Court and thus the judge cannot be faulted for
drawing the issue for consideration when determining the Revision related to the
current appeal. Assertions that the issue was drawn suo motu by the judge does
not stand since the parties themselves raised the issue in their pleadings before
the High Court which prompted the Judge to consider and frame it as one of the
consequential issues when evaluating the evidence. Consequently, the 4th
ground of appeal fails.
142
In the event, for the reasons stated hereinabove, the appeal fails in entirety and
is hereby dismissed. This being a Labour dispute matter, let each party to bear
its own costs. Order Accordingly.
Appeal dismissed
DEW DROP CO. LTD v. IBRAHIM SIMWANZA

AT MBEYA
(NDIKA, SEHEL, and KENTE, JJA.)
(Appeal from the decision of the High Court of Tanzania, Labour Division at
Sumbawanga, Mashauri, J. dated 2nd December, 2019 in Revision No. 2 of
2019)
Burden of proof – Employee charged with allegations of gross dishonest by the
employer - Whether criminal proceedings must be instituted and charges proved
before termination of the employee's employment.
Termination of employment - Employee terminated on ground of gross
dishonesty for the money entrusted to him as a driver - No evidence suggesting
that the respondent was formally charged – Whether the termination was
substantively and procedurally unfair.
The respondent was employed by the appellant to a position of a driver from 1st
January, 2017 until his termination on 24th April, 2018 over allegations of gross
dishonesty as by virtue of his position. Aggrieved by such termination, he filed
a complaint before the CMA alleging that he was unfairly terminated from
employment. After hearing the evidence from both parties, the CMA found that
the termination was substantially and procedurally unfair and proceed to grant
the employee the reliefs claimed and unclaimed in his referral form.
Dissatisfied with the award, the appellant filed an application for revision. After
hearing the parties, the High Court concurred with the arbitrator that the
termination of employment of the respondent was substantially unfair because
there was no proof of any criminal charge preferred against the respondent and
143
on the procedure for termination, it found that the procedure was not followed
because there was no proof that the respondent was not served with summons to
show cause before the disciplinary committee. Nor was there evidence to show
that a charge sheet was served on the respondent. Accordingly, the High Court
dismissed the application. Still aggrieved, the appellant filed the present appeal.
Held: (i) It was wrong for the High Court to hold that since there was no criminal
charge preferred against the respondent and that the criminal liability was not
proven beyond reasonable doubt, the termination was unfair. The High Court
ought to have directed its mind on whether there was valid and fair reason for
termination and whether the procedure for termination was complied with by the
appellant and not on the criminal liability.
(ii) Failure to serve the employee with a formal charge was a gross violation of
Rule 13 (2) of the Employment and Labour Relations (Code of Good Conduct)
Rules, 2007, Government Notice No. 42 of 2007 hence making the termination
of the respondent procedurally unfair.
(iii) It is trite law that, as a general rule, reliefs not founded on the pleadings and
which are not incidental to the specific main prayers sought in the plaint should
not be awarded.
Cases referred to
(1) Jimson Security Service v. Joseph Mdegele, Civil Appeal No. 152 of 2019;
(2) Security Group (T) Ltd v. Samson Yakobo and 10 Others, Civil Appeal
No. 76 of 2016;
(3) Felician Rutwaza v. World Vision Tanzania, Criminal Appeal No. 213 of
2019; and
(4) Kombo Hamis Hassan v. Paras Keyoulous Angelo, Civil Appeal No. 14
of 2008.

(1) Rule 13 (2) of the Employment and Labour Relations (Code of Good
Conduct) Rules, 2007, Government Notice No. 42 of 2007
(2) Rule 5 (1) of the Labour Institutions (Mediation and Arbitration) Rules,
(3) Section 37 (2) of of the Employment and Labour Relations Act, 2004
144
Mr. Habibu, for Appellant
Respondent, in person

27th September, 2021
SEHEL, J.A.: This is an appeal against the decision of the High Court (Labour
Division) in Revision No. 2 of 2019 that affirmed the Award of the Commission
for Mediation and Arbitration (CMA) in a Labour Dispute No.
CMA/RK/38/2018 (the labour dispute).
The brief facts leading to the present appeal are such that: - the respondent was
employed by the appellant, Dew Drop Co. Ltd to a position of a driver from 1st
January, 2017 until his termination on 24th April, 2018 over allegations of gross
dishonesty as by virtue of his position, he was entrusted with TZS. 380,000.00
being money he received from distributing mineral water but did not remit it to
the cashier. Aggrieved by such termination, he filed a complaint before the CMA
alleging that he was unfairly terminated from employment and sought to be paid
a month's salary in lieu of notice of termination at TZS. 280,000.00, unpaid
salary at TZS. 280,000.00, arrears of salary TZS. 1,680,000.00, severance
allowance in the sum of TZS. 70,600.00 and compensation of TZS. 3,360,000.00
for unlawful termination. He also sought to be issued with a certificate of service
and terminal benefits.
After hearing the evidence from both parties, the CMA found that the
termination was substantially and procedurally unfair. It thus awarded him the
following reliefs:
1. Payment of unpaid salaries TZS. 280,000.00
2. Payment of one-month salary in lieu of notice TZS.
280,000.00
3. Severance allowance of TZS. 70,000.00,
4. Certificate of service,
5. Compensation of 12 months' salaries for unfair
termination TZS. 3,360,000.00,
6. Payment of 20 months' contractual salaries for the breach
of the contract, and
145
7. Compensation of at least 10% as inflation rate for the
whole amount due for payment from the date it was due.
Dissatisfied with the award, the appellant filed an application for revision in the
High Court of Tanzania, Labour Division at Sumbawanga (the High Court).
After hearing the parties, the High Court concurred with the arbitrator that the
termination of employment of the respondent was substantially unfair because
there was no proof of any criminal charge preferred against the respondent and
on the procedure for termination, it found that the procedure was not followed
because there was no proof that the respondent was not served with summons to
show cause before the disciplinary committee. Nor was there evidence to show
that a charge sheet was served on the respondent. The High Court further found
that the minutes of the ethics committee were fabricated because the respondent
did not sign it. Accordingly, the High Court dismissed the application. Still
aggrieved, the appellant filed the present appeal. In its memorandum of appeal,
the appellant listed the following four grounds:
1. That, the learned judge erred in law and fact in holding that
the criminal proceedings must be instituted and charges
proved before termination of the employee's employment.
2. That, the learned judge erred in law and fact in holding that,
the respondent was unfairly terminated from his
employment.
3. That, the learned judge erred in law in upholding the CMA
award which awarded the respondent payment of TZS.
5,600,000.00 equivalent to 20 months salaries contrary to
the law.
4. That, the learned judge erred in law in upholding the CMA
award which awarded the respondent payment of
compensation of 10 percent of decretal sum as the inflation
rate contrary to the law.
At the hearing of the appeal, the appellant was represented by Mr. Kamru Habib,
learned advocate whereas the respondent appeared in person, unrepresented.
From the submission made by the learned counsel for the appellant and the reply
by the respondent, we find that there are only two main issues for our
determination. The first issue arose from the first and second grounds of appeal,
that is, whether the respondent's termination was fair. And the second issue arose
146
from grounds three and four, that is, whether the reliefs awarded were pleaded
by the respondent.
We shall start with the first issue where the learned counsel for the appellant
faults the findings of the High Court that the termination of the respondent was
unfair. As correctly submitted by Mr. Habib, section 37 (2) of ELRA requires an
employer to prove that the termination was substantially and procedurally fair.
For ease of reference, we reproduce hereunder section 37 (2) of ELRA that reads:
(a) that the reason for the termination is valid/
(i) related to the employees conduct capacity or
compatibility/ or
(ii) based on the operational requirements of the
employer, and
(c) that the employment was terminated in accordance
with a fair procedure.
From the above provision of the law, the burden of proof is placed upon the
employer to prove that there was valid and fair reason to terminate the employee
and the due process in terminating such an employee was observed. In that
regard, we are satisfied that the holding by the High Court was based on a wrong
premise. It was wrong for the High Court to hold that since there was no criminal
charge preferred against the respondent and that the criminal liability was not
proven beyond reasonable doubt, the termination was unfair. The High Court
ought to have directed its mind on whether there was valid and fair reason for
termination and whether the procedure for termination was complied by the
appellant and not on the criminal liability.
On our part, we have revisited the record of appeal particularly the CMA's
proceedings and observed from the respondent's letter of termination that he was
terminated on the ground of gross dishonesty for the money entrusted to him as
a driver. In terms of section 37 (2) of the ELRA, the appellant had the burden to
prove that the respondent committed that offence of gross dishonesty and the
procedure of his termination was adhered to the letter. In trying to prove that
there was valid and fair reason, the appellant called Mohamed Salum Arfi
(DWS), a company manager who told the CMA that the respondent was
147
employed as a driver of the company and among his responsibilities were to
deliver and sell water to customers. Mery Moshi (DW1), a sales officer of
the appellant's company told the CMA that on 9thApril, 2018 she gave the
respondent 100 cartons of mineral water valued at TZS. 380,000.00 to deliver to
Kwela (a customer) which he did deliver but he did not remit the proceeds of
such sale to the cashier. Rose Malele (DW4), a cashier at the appellant's company
confirmed to the CMA that on 10th April, 2018 the respondent was supposed to
give her the proceeds of sale of 100 cartons of mineral water but he did not. In
his evidence, the respondent did not rebut the evidence adduced by the
appellant's witnesses that he was given 100 cartoons of mineral water to deliver
to Kwela. Given the evidence on record, we are satisfied that in terms of section
37 (2) (b) (i) and (ii) of the ELRA, there was a valid and fair reason to terminate
the appellant. The reason being gross dishonesty.
Turning to the issue of whether the procedure was fair, this should not detain us
much because after we have revisited the record of appeal, we failed to see any
evidence suggesting that the respondent was formally charged. Failure to serve
him with a formal charge was a gross violation of Rule 13 (2) of the Employment
and Labour Relations (Code of Good Conduct) Rules, 2007, Government Notice
No. 42 of 2007 hence making the termination of the respondent procedurally
unfair (see the case of Jimson Security Service v. Joseph Mdegele, Civil Appeal
No. 152 of 2019 (unreported)). Since the procedure in terminating the respondent
was flawed, we find that the termination of the respondent was unfair.
Accordingly, we find that the first and second grounds of appeal do not have
merit.
Next for our consideration are the reliefs awarded to the respondent. From the
outset we wish to state that the appellant did not have any issue with the payment
of unpaid salaries of TZS. 280,000.00, one month’s salary in lieu of notice TZS.
280,000.00, severance allowance TZS. 70,000.00, and compensation of 12
month's salaries for unfair termination TZS. 3,360,000.00. We shall thus not
disturb these reliefs as we are satisfied that they were awarded in accordance
with section 40 (1) of the ELRA.
The appellant is challenging the award of 20 months contractual salaries and
10% inflation rate. Mr. Habib submitted that these remedies are not among the
remedies provided under section 40 (1) of the ELRA and that they were not
pleaded and claimed by the respondent. We entirely agree with him because we
have earlier on shown the reliefs which the respondent sought to be awarded.
148
Unfortunately, as rightly submitted by the learned counsel for the appellant, the
respondent did not seek for payment of these two reliefs in his Form No. 1 which
is found at pages 7- 13 of the record of appeal. Form No. 1 is a document which
institutes a labour dispute and it is filed in terms of Rule 5 (1) of the Labour
Institutions (Mediation and Arbitration) Rules, 2004, Government Notice No. 64
of 2007. The Court in the case of Security Group (T) Ltd v. Samson Yakobo and
10 Others, Civil Appeal No. 76 of 2016 (unreported)) interpreted Form No. 1 to
be synonymous to a plaint. The respondent was supposed to list down in his
Form No. 1 all the reliefs which he sought to be awarded by the CMA. It is trite
law that, as a general rule, reliefs not founded on the pleadings and which are
not incidental to the specific main prayers sought in the plaint should not be
awarded (see the case of Kombo Hamis Hassan v. Paras Keyoulous Angelo,
Civil Appeal No. 14 of 2008 (unreported)).
Since, the respondent did not claim in his Form No. 1 for payment of 20
months' contractual salaries and 10% inflation rate and since they are not
incidental to the specific prayer for unfair termination, we are constrained to set
them aside. Furthermore, we find that the award of 12 months' salaries and 20
months' contractual salaries was a double payment as we held in the case of
Felician Rutwaza v. World Vision Tanzania, Criminal Appeal No. 213 of 2019
(unreported). Accordingly, we find that the third and fourth grounds of appeal
have merit.
In the end, the appeal is partly allowed to the extent shown herein.
We therefore set aside the award of 20 months' contractual salaries and
10% inflation rate. Other reliefs awarded by the CMA and confirmed by the High
Court are left undisturbed because we are satisfied that the respondent was
unfairly terminated. We make no order as to costs because the appeal arose from
a labour dispute. Order accordingly.
DR. ABRAHAM ISRAEL SHUMA MURO v. NATIONAL

INSTITUTE FOR MEDICAL RESEARCH &ATTORNEY
GENERAL
AT MWANZA
149
(MKUYE, MWAMBEGELE, and LEVIRA JJA)
Mwanza, Nyerere. J., dated 21st July, 2014 in Labour Dispute No. 01 of 2014)
Certificate of delay - Certificate of Delay excludes time from a date even before
the Registrar received the letter applying for documents for appeal purposes -
Whether the defect does not go to the root of the matter.
Certificate of delay - Appellant applied to be supplied with documents in respect
of two different matters, to wit, Labour Dispute No. 1 of 2014 and Misc. Labour
Application No. 6 of 2018 to enable him prepare the record of appeal –
Certificate of delay only referred to Misc. Labour Application No. 6 of 2018, a
matter not the subject of appeal before the Court – Whether defect is curable
under the overriding principle – Whether the appeal was time barred.
In the High Court of Tanzania (Labour Division) at Mwanza, the appellant, a

retired officer who was initially employed by the defunct East African
Community and later by the 1st respondent unsuccessfully lodged a complaint
vide Labour Dispute No. 1 of 2014 against the respondents. The dispute between
the appellant and the first respondent was initially referred to the Commission
for Mediation and Arbitration for reconciliation but in vain. Thereafter, the
appellant filed unsuccessfully the above mentioned complaint in the High Court.
In its decision, the High Court declared that the appellant was entitled to retire
with PPF and not PSPF because he was not a member of PSPF. Aggrieved by
the decision of the High Court, the appellant filled this appeal before the Court.
Before the inception of the hearing of the appeal, the Court suo motu inquired
from the counsel for the parties about the propriety of the Certificate of Delay
appearing in the record of appeal.
Held: (i) The mere fact that the appellant's first appeal was struck out by the
Court did not give him an automatic right to reinstitute his appeal without
complying with the requirements of Rule 90 (1) of the Court of Appeal Rules
2009. The defects in the Certificate of Delay under consideration are not trivial
and that the Court cannot ignore them under the overriding objective principle
and proceed with the hearing of the appeal.
(ii) Circumstances obtaining in this appeal required the appellant to seek and
acquire a valid Certificate of Delay because the appellant's letter to the Registrar
referred to both matters, Labour Dispute No. 1 of 2014 and Misc. Labour
150
Application No. 6 of 2018. Mentioning only Misc. Labour Application No. 6 of
2018 rendered the certificate invalid.
Appeal struck out

Cases referred to
(1) Geita Gold Mining Co. Ltd v. Jumanne Mtafuni, Civil Appeal. No. 30 of
2019;
(2) M/s Flycatcher Safaries Ltd v. Hon. Minister for Lands and Human
Settlements Development and Another, Civil Appeal No. 142 of 2017;
(3) Ecobank Tanzania Limited v. Future Trading Company Limited, Civil
Appeal No. 82 of 2019 Melchiades John Mwenda v. Gizelle Mbaga
(Administratrix of the Estate of John Japhet Mbaga - deceased) & 2
Others, Civil Appeal No. 57 of 2018;
(4) James Funke Gwagilo v. Attorney General [2004] T.L.R. 161; and
(5) Hotel Travertine Limited & 2 Others v. National Bank of Commerce
[2006] T.L.R. 133.

(1) Rule 90 (1) of the Court of Appeal Rules 2009.
Mr. Outa, for Appellant

Mr. Malata, Solicitor General, Ms. Mwandambo, Mr. Kalokola, and Ms.
Yongo, State Attorneys, for Respondents
RULING OF THE COURT

7th May, 2021
LEVIRA, J.A.: In the High Court of Tanzania (Labour Division) at Mwanza,

the appellant, a retired officer who was initially employed by the defunct East
African Community and later by the 1st respondent unsuccessfully lodged a
151
complaint vide Labour Dispute No. 1 of 2014 against the respondents claiming
for the following:
1. Payment of all retirement benefits;
2. An order for payment of general damages arising from loss
of legitimate expectation in life after retirement from
employment;
3. An order for payment of general damages for breach of
trust, breach of fiduciary duty, breach of contractual and
statutory duties;
4. An order compelling the defendant (the 1st respondent
herein) to compensate him the sum of Tshs. 40/000/000/-
for unlawful deductions of salary and failure to remit
statutory deductions to the proper social security scheme;
5. Refund of Tshs. 477,311/80 plus 30% interest from
September, 1981 to June 1999 which was unlawfully
deducted from his salaries;
6. Costs of the suit and the interest thereon;
7. Any other relief as the court may deem Just to grant.
The gist of the appellant's complaint before the High Court was that his
contributions which were deducted from his salaries were submitted to Parastatal
Pension Fund (PPF) instead of Public Service Pensions Fund (PSPF). The
appellant claimed that initially he was employed by the defunct East African
Community (the EAC) from 30th March, 1976. Following the collapse of the
EAC in 1977, the appellant worked with the Government under the Ministry of
Health. In 1980 the Government established the National Institute for Medical
Research (NIMR) (the 1st respondent herein) and the appellant was inherited as
a research officer from July, 1981. All employees who were working under
the 1st respondent as a matter of law were subjected to PPF membership as it was
a public corporation.
It is on record that from 1981 to 1983 the appellant's monthly deductions were
remitted to PPF. When he was given an option to choose whether he wished to
be a member of PPF or Government Pension Scheme, he chose the latter.
However, the appellant expected his monthly pension contributions would be
remitted to PSPF as he alleged to have had chosen to continue with the contract
he had with the EAC under which his contributions were being remitted. Soon
before his retirement, the appellant came to realise that his monthly contributions
152
were being remitted to PPF instead of PSPF which he alleged to have opted from
when he started working with the 1st respondent. The dispute between the
appellant and the first respondent was referred to the Commission for Mediation
and Arbitration (the CMA) for reconciliation but in vain. Thereafter, the
appellant filed unsuccessfully the above introduced Labour Dispute in the High
Court. In its decision, the High Court declared that the appellant was entitled to
retire with PPF and not PSPF because he was not a member of PSPF. The 1st
respondent in assistance with PPF were ordered to pay the appellant all the
retirement benefits.
Aggrieved by the decision of the High Court, the appellant has presented before
us a four grounds memorandum of appeal. However, for the reasons that will
shortly come into light, we are not going to reproduce them herein.
At the hearing of this appeal, the appellant was represented by Mr. Deya Paul
Outa, learned advocate, whereas the respondents had the services of Mr. Gabriel
Paschal Malata, learned Solicitor General assisted by Ms. Subira Mwandambo,
Mr. Stanley Kalokola and Ms. Sabina Yongo, all learned State Attorneys.
Before the inception of the hearing of the appeal, the Court suo motu inquired
from the counsel for the parties about the propriety of the Certificate of Delay
appearing on page 305 of the record of appeal. Counsel for the parties addressed
the Court on the point raised where the counsel for the appellant was the first to
address us.
Having heard the rival submissions of the counsel for parties regarding the
propriety of the Certificate of Delay, we find it apposite to start with Rule 90(1)
of the Tanzania Court of Appeal Rules (the Rules) which provides that:
Subject to the provisions of rule 128, an appeal shall be
instituted by lodging in the appropriate registry, within sixty
days of the date when the notice of appeal was lodged with:
a) a memorandum of appeal in quintuplicate;
b) the record of appeal in quintuplicate;
c) security for costs of the appeal
save that where an application for a copy of the proceedings in the High Court
has been made within thirty days of the date of decision against which it is
desired to appeal, there shall, in computing the time within which the appeal is
to be instituted be excluded such time as may be certified by the Registrar of the
153
High Court as having been required for the preparation and delivery of that copy
to the appellant.
The above provision provides guidance to the Court in determining whether or
not it is vested with powers to determine appeals presented before it. In the
present appeal, the counsel for the appellant submitted that the appellant's first
appeal to the Court was struck out and therefore the appellant had to apply to the
High Court for extension of time within which to file a fresh notice of appeal
vide Misc. Labour Application. No. 6 of 2018. Upon our perusal of the record of
appeal, we discovered that in the said application the appellant had applied in
the chamber summons for an extension of time to file a notice of appeal and
appeal to the Court against the decision of the High Court in Labour Dispute No.
1 of 2014 out of time. (See page 263 of the record of appeal). However, the High
Court in its Ruling handed down on 31st October, 2018 as found on page 290 of
the record of appeal, granted only the first prayer where the appellant was given
14 days within which to file a notice of appeal. On 12th November, 2018 the
appellant filed the notice of appeal appearing on page 300 of the record of appeal.
On the same date (12th November, 2018) he wrote a letter to the Registrar of the
High Court applying for proceedings, Drawn Order and other Documentary
Exhibits tendered in Labour Dispute No. 1 of 2014, also Proceedings and Drawn
Order in Misc. Labour Application No. 6 of 2018 as per the letter found on page
303 of the record of appeal.
On 4th October, 2019 the Deputy Registrar of the High Court wrote the appellant
a letter which is found on page 306 of the record of appeal informing him that
the documents were ready for collection. On 3rd December, 2019 the appellant
filed the memorandum and record of appeal. We think, circumstances obtaining
in this appeal required the appellant to seek and acquire a valid Certificate of
Delay. We say so because the appellant's letter to the Registrar referred to both
matters, Labour Dispute No. 1 of 2014 and Misc. Labour Application No. 6 of
2018. Mentioning only Misc. Labour Application No. 6 of 2018 rendered the
certificate invalid. For ease of reference the relevant part of the Certificate of
Delay reads:
CERTIFICATE OF DELAY
(Made under Rule 90(1) of the Tanzania Court of Appeal
Rules 2009 and
GN. No. 344 of 2019
154
This is to certify that the period from 7th day of November,
2018 when the Appellant requested for copies of proceedings,
ruling and drawn order in Misc. Labour Application No. 6 of
2018 up to h day of October, 2019 when the appellant was
notified that the documents were ready for collection, a total
number of 332 days should be excluded in computing the time
for instituting the appeal in the Court of Appeal.
GIVEN under my hand and the seal of the court this day of
October, 2019.
Signed
DEPUTY REGISTRAR HIGH
COURT OF TANZANIA MWANZA
The Certificate of Delay reproduced above is a clear evidence that the Registrar
did not adhere to the requirements of Rule 90(1) of the Rules under which the
certificate was made. The above Rule makes reference to the decision desired to
be appealed against, and for the purpose of this appeal it is Labour Dispute No.
1 of 2014.
We are unable to agree with Mr. Outa that the High Court extended time for the
appellant to file appeal out of time as earlier on intimated. Even if we assume
that the appellant timely filed the notice of appeal on 12th November, 2018, after
time was extended, still he ought to have filed the appeal within sixty days
thereof, that is, by 11thJanuary, 2019. This appeal was filed on 3rd December,
2019 which was almost eleven months after the notice of appeal was lodged. In
our considered opinion, the mere fact that the appellant's first appeal was struck
out by the Court did not give him an automatic right to reinstitute his appeal
without complying with the requirements of Rule 90 (1) of the Rules. In the
circumstances, we are not persuaded by Mr. Outa's argument that the defects in
the Certificate of Delay under consideration are trivial and that we can ignore
them under the overriding objective principle and proceed with the hearing of
the appeal.
We are alive to the current trend where under the overriding objective principle,
the Court has shifted from striking out appeals due to defects in Certificates of
Delay which would ordinarily be struck out - see: Geita Gold Mining Co. Ltd v.
Jumanne Mtafuni, Civil Appeal. No. 30 of 2019, M/s Flycatcher Safaries Ltd v.
Hon. Minister for Lands and Human Settlements Development and Another,
155
Civil Appeal No. 142 of 2017 and Ecobank Tanzania Limited v. Future Trading
Company Limited, Civil Appeal No. 82 of 2019 (all unreported). In all these
cases, we have been allowing appellants to seek and obtain from the Registrar
rectified Certificates of Delay. However, we do not think that this is a fit case to
do so. We are unable to give such order to the appellant because no prayer has
been made by the appellant's counsel in that respect. It is settled position that the
court cannot grant a party or parties an order or relief which has not been prayed
for. In Melchiades John Mwenda v. Gizelle Mbaga (Administratrix of the Estate
of John Japhet Mbaga - deceased) & 2 Others, Civil Appeal No. 57 of 2018
(unreported) at page 24, when the Court was dealing with a land matter where
the trial High Court fell into error when it declared the second respondent in that
appeal the lawful owner of the disputed land while he did not plead ownership
by way of counter claim, it stated:
It is elementary law which is settled in our jurisdiction that the
Court will grant only a relief which has been prayed for-see
also James Funke Gwagilo v. Attorney General [2004] T.L.R.
161 and Hotel Travertine Limited & 2 Others v. National
Bank of Commerce [2006] T.L.R. 133.
It is our observation that the appellant certified the record of appeal to be correct
at page (iii) despite the fact that the Registrar neither supplied him with all the
requested documents nor issued Certificate of Delay in respect of Labour
Dispute No. 1 of 2014 as per the appellant's letter of 12th November, 2018. We
appreciate Mr. Malata's concern regarding the record of appeal but we think,
since the appellant is yet to be supplied with the requested documents in respect
of Labour Dispute No. 1 of 2014 it will be inapt to decide on it now.
Having so stated, we refrain from applying the overriding objective
principle to spare the invalid Certificate of Delay and proceed with the hearing
of the appeal as prayed by the counsel for the appellant. Consequently, we strike
out the appeal for being accompanied by a defective Certificate of Delay
rendering it time barred.
Appeal struck out
EDGER KAHWILI v. AMER MBARAK & AZANIA BANCORP
156
LTD
AT DAR ES SALAAM
(MUGASHA, NDIKA, and LEVIRA, JJA.)
CIVIL APPLICATION NO. 21/13/2017
(Application for review of the Judgment of the Court of Appeal of Tanzania at
Dar es Salaam, Mjasiri, Juma and Mugasha, JJ. A., dated 28th July, 2016 in
Civil Appeal No. 154 of 2015)
Application for review - Judgment allegedly based on a manifest error on the
face of the record resulting in the miscarriage of justice – Whether the
disposition of the impugned appeal by the Court was riddled with a manifest
error.
Application for review - Judgment allegedly based on a manifest error on the
face of the record resulting in the miscarriage of justice – Whether the Court
ought to have followed the course it took in its previous four decisions
This is an application made under Rule 66 (1) (a) and (c) and (3) of the Tanzania
Court of Appeal Rules, 2009 ("the Rules'') for review of the judgment of the
Court dated 28thJuly, 2016 in Civil Appeal No. 154 of 2015. The main thrust of
the application is a contention that the said judgment is based on "a manifest
error on the face of the record resulting in the miscarriage of justice."
Held (i) It bears restating that a review of a decision of the Court is by no means
an appeal in disguise whereby an erroneous decision is examined and corrected.
The power of review being residual and circumscribed is only exercisable upon
any of the grounds enumerated by Rule 66 (1) (a) to (e) of the Court of Appeal
Rules, 2009.
(ii) Our legal system being one based on the application of the Doctrine of Stare
Decisis requiring like cases to be treated alike, the Court is certainly bound to
follow its previous decisions as there is obviously no sound reason for not doing
so. The oversight alluded to in the application is a good cause for reviewing the
judgment concerned.
Application granted
157
Cases referred to
(1) Awiniel Mtui & Two Others v. Stanley Ephata Kimambo (Attorney for
Ephata Mathayo Kimambo), Civil Appeal No. 97 of 2015:
(2) Samson Njarai v. Jacob Mesoviro, Civil Appeal No. 98 of 2015;
(3) Tubone Mwambeta v. Mbeya City Council, Civil Appeal No. 287 of 2017
;and
(4) Edina Adam Kibona v. Absolom Swebe (Sheli), Civil Appeal No. 286 of
2017;
(5) Chandrakant Joshubhai Patel v. Republic [2004] T.L.R. 218 at 225.
(6) Gujarat v. Consumer Education and Research Centre (1981) AIR GU]
223]
(7) Abdon Edward Rwegasira v. The Judge Advocate General, Criminal
(8) Mashaka Henry v. Republic, Criminal Application No. 2 of 2012;and
(9) Elia Kasalile & 17 Others v. Institute of Social Work, Civil Application
No. 187/18/2018
Statutory provisions referred

(1) Rule 66 (1) (a) and (c) and (3) of the Tanzania Court of Appeal Rules,
2009
(2) Section 23 (1) and (2) of the Land Disputes Courts Act, [Cap. 216 R.E.
2002]
Mr. Mushokorwa, for Applicant

Mr. Shirima, Respondent
RULING OF THE COURT

21st February, 2020
NDIKA, J.A.: This is an application made under Rule 66 (1) (a) and (c) and
(3) of the Tanzania Court of Appeal Rules, 2009 ("the Rules'') for review of the
judgment of the Court dated 28thJuly, 2016 in Civil Appeal No. 154 of 2015. The
158
main thrust of the application is a contention that the said judgment is based on
"a manifest error on the face of the record resulting in the miscarriage of justice."
The essential facts of the case and the context in which this matter has
arisen are briefly as follows: Edgar Kahwili ("the applicant”) sued Amer Mbarak
and Azania Bancorp Ltd. ("the first and second respondents" respectively) along
with Mfima Auction Mart & General Trade Ltd. ("the auctioneer'') in the District
Land and Housing Tribunal of Iringa ("the trial tribunal''). The claim was for
ownership and possession of landed property described as Plot No. 85, Zone II,
located at Gangilonga, Iringa Municipality held under Certificate of Title No.
215002138.
It was common cause that the property in dispute initially belonged to a certain
Thomas Kolimba who had mortgaged it to secure a loan advanced to him by the
second respondent. Following Thomas Kolimba's default on repayment, the
auctioneer, acting on the second respondent's instructions, offered the property
for sale at a public auction where the applicant's bid in the sum of TZS.
2,600,000.00 was accepted. Although the applicant duly paid the whole purchase
price, the auctioneer withheld the certificate of title. He later on learnt that the
second respondent had rejected his bid on the ground that it was too low and thus
it had directed the auctioneer to re- auction the property. As instructed, the
auctioneer resold the property on 9th June, 2004 at a public auction. This time,
the first respondent emerged the successful bidder.
In its judgment, the trial tribunal declared the applicant the lawful owner of the
disputed property on the ground that he was the successful bidder at the initial
public auction. Aggrieved, the respondents appealed to the High Court of
Tanzania at Iringa. That appeal bore no fruit as it was dismissed on the reason
that it was time-barred. Undaunted, the respondents re-approached the High
Court seeking extension of time to have the appeal re-filed, but the matter was
struck out.
Being dissatisfied, the respondents appealed to this Court vide Civil Appeal No.
154 of 2015. When the appeal came up for hearing, the Court suo motu required
the parties to address it on the propriety and regularity of the trial before the trial
tribunal. It was manifest on the record that the assessors who sat with the
presiding Chairman at the trial were changed in the course of the trial and that
none of them gave their opinion on the case before the presiding Chairman
handed down the judgment.
159
Having heard Mr. Bernard Shirima, learned counsel for the respondents (the then
appellants), and Mr. Justinian Mushokorwa, learned counsel for the applicant
(the then respondent), the Court held that the two infractions were a
contravention of the mandatory requirements of section 23 (1) and (2) of the
Land Disputes Courts Act, [Cap. 216 R.E. 2002] (the "LDCA'') and that they
could not be waived under the curative provisions of section 45 of that law. In
view of that, the Court, exercising its revisional powers, nullified all the
proceedings and the decisions of the trial tribunal and the High Court. The Court,
then, left it open for either party in the case to re-institute the suit in any court of
competent jurisdiction.
At the hearing of the application before us, the same counsel represented the
parties. Initially in his written submissions in support of the application, Mr.
Mushokorwa raised four issues for consideration: one, whether the trial
tribunal's Chairman could not proceed and determine the case in terms of section
23 (3) of the LDCA even though both members of the tribunal were absent; two,
whether it was correct for the Court to equate the scheme of assessors applicable
to ordinary courts to the tribunal's scheme under the LDCA; three, whether the
Court acted reasonably to nullify the entire proceedings of the trial tribunal; and
four, whether the Court acted reasonably in not ordering a retrial of the matter
while it did so in similar cases in Awiniel Mtui & Two Others v. Stanley Ephata
Kimambo (Attorney for Ephata Mathayo Kimambo), Civil Appeal No. 97 of
2015 and Samson Njarai v. Jacob Mesoviro, Civil Appeal No. 98 of 2015 (both
unreported); Tubone Mwambeta v. Mbeya City Council, Civil Appeal No. 287
of 2017 (unreported) and Edina Adam Kibona v. Absolom Swebe (Sheli), Civil
Appeal No. 286 of 2017 (unreported).
In his oral argument, Mr. Mushokorwa abandoned the first three issues and
canvassed the fourth issue only.
It bears restating, at the inception, that a review of a decision of the Court is by
no means an appeal in disguise whereby an erroneous decision is examined and
corrected. The power of review being residual and circumscribed is only
exercisable upon any of the grounds enumerated by Rule 66 (1) (a) to (e) of the
Rules. As hinted earlier, the instant application is predicated upon the ground
that the judgment under review was based on a manifest error on the face of the
record resulting in the miscarriage of justice.
To be sure, the phrase "manifest error on the face of record resulting in injustice"
was fully addressed by the Court in Chandrakant Joshubhai Patel v. Republic
160
[2004] T.L.R. 218 at 225. Having examined several authorities on the matter, the
Court adopted from Mulla on the Code of Civil Procedure (14 Ed), pages 2335
- 2336 the following summarized description of that expression:
An error apparent on the face of the record must be such as
can be seen by one who runs and reads, that is, an obvious
and patent mistake and not something which can be
established by a long drawn process of reasoning on points
on which there may conceivably be two opinions: State of
Gujarat v. Consumer Education and Research Centre (1981)
AIR GU] 223] ... Where the judgment did not effectively
deal with or determine an important issue in the case, it
can be reviewed on the ground of error apparent on the
face of the record [Basselios v. Athanasius (1955) 1 SCR
520] ... But it is no ground for review that the judgment
proceeds on an incorrect exposition of the law [Chhajju Ram
v. Neki (1922) 3 Lah. 127]. A mere error of law is not a ground
for review under this rule. That a decision is erroneous in law
is no ground for ordering review: Utsaba v. Kandhuni (1973)
AIR Ori. 94. It must further be an error apparent on the face
of the record. The line of demarcation between an error
simpliciter, and an error on the face of the record may
sometimes be thin. It can be said of an error that it is
apparent on the face of the record when it is obvious and
self-evident and does not require an elaborate argument to
be established [Thungabhadra Industries Ltd v. State of
Andhra Pradesh (1964) SC 1372]. [Emphasis added]
See also the decisions of the Court in P.9219 Abdon Edward Rwegasira v. The
Judge Advocate General, Criminal Application No. 5 of 2011, Mashaka Henry
v. Republic, Criminal Application No. 2 of 2012, and Elia Kasalile & 17 Others
v. Institute of Social Work, Civil Application No. 187/18/2018 (all unreported).
We have hinted earlier that in the instant case, it is the concluding portion of the
judgment that is attacked on the ground that it is marred by a manifest error. We
find it instructive to excerpt that part thus:
If any of the parties so wishes, he/she may recommence the
action in the court of competent jurisdiction subject to the
161
law of limitation. We make no order as to costs since the
anomaly was raised suo motu by the Court. [Emphasis added]
Having reflected on the above excerpt, we hasten to say that we agree with Mr.
Mushokorwa that our disposition of the appeal was riddled with a manifest error.
To begin with, we wish to emphasise two points: first, that in our impugned
judgment what we had found vitiated by the procedural ailments were the trial
proceedings and the decision thereon as well as the subsequent proceedings
before the High Court and the corresponding judgment; and secondly, that the
nullification of the entire trial and appellate proceedings as well as the decisions
thereon did not deface the pleadings on record that the parties had filed and
exchanged at the pre-trial stage. It is thus an ineluctable inference that the suit
before the trial tribunal necessarily remained alive but it stayed in abeyance.
Evidently, our impugned judgment overlooked this fact as it declared that it was
open to either of the parties to re-institute the action in any court of competent
jurisdiction.
More specifically, we agree with Mr. Mushokorwa that in our disposition of the
appeal the subject of the impugned judgment, we ought to have followed the
course we took in our four decisions that he cited. We have read them all. Indeed,
they all concerned, in essence, similar procedural infractions that resulted in the
trial and appellate proceedings as well as the decisions thereon being nullified.
In each of the cases, we issued a consequential order for remittance of the suit to
the respective trial tribunal for a fresh trial to be conducted before another
Chairman and a new set of assessors. Looking at these cases objectively as
against the instant matter, we see intrinsic similarities between them. Our legal
system being one based on the application of the Doctrine of Stare Decisis
requiring like cases to be treated alike, we are certainly bound to follow these
decisions as there is obviously no sound reason for not doing so. For that reason,
we are of the settled mind that the oversight alluded to above is a good cause for
reviewing the judgment concerned. We thus find the application meritorious.
In the upshot of the matter, we grant the application. In consequence, we vacate
our consequential order in the judgment dated 28th July, 2016 in Civil Appeal
No. 154 of 2015 and, in terms of Rule 66 (6) of the Rules, we substitute for it an
order that the matter be remitted to the trial tribunal for the trial to be conducted
afresh and expeditiously before another Chairman and a new set of assessors.
Costs shall be in the cause.
Application granted
162
ELIA KASALILE & 17 OTHERS v. INSTITUTE OF SOCIAL
WORK
AT DAR ES SALAA M
(MMILLA, LILA, and WAMBALI, JJA.)
(Application for review from the decision of the Court of Appeal of Tanzania
at Dar es Salaam, dated 10th April, 2018 in Civil Appeal No. 145 of 2016)
Preliminary objection – Date of judgment – What constitutes date of judgment –
Rule 39(9) of the Court of Appeal of Tanzania Rules, 2009
Jurisdiction – Application for revision – Circumstances in which court may
review its own decision – Rule 66(1) of the Court of Appeal of Tanzania Rules,
2009
Review – Court agrees with both the CMA and the High Court that termination
of employment of applicants was both substantively and procedurally unfair –
Court refrains from granting the reliefs prayed for – Whether failure to grant
the reliefs constitutes an apparent error on the face of the record
Review – Court sitting on revision – Court has power to correct any omission
done in its previous decision – Whether court has power to review the exercise
of discretionary power by the CMA or the High Court
Right to be heard – Applicants denied the right to be heard before the
disciplinary committee - Whether the denial nullified the proceedings before the
CMA and High Court and whether there was an error on the face of the record
The applicants’ employment was terminated by the respondent consequent

upon which they registered a dispute with the CMA. Both the applicants and
respondent were aggrieved by the CMA decision. Each of them preferred a
revision application to the High Court (Labour Division) which were
consolidated and determined in Consolidated Revisions No. 187 and 199 of
2013. Still aggrieved, the applicants filed an appeal and the respondent filed a
cross appeal to the Court which were heard and determined in Civil Appeal
163
No.145 of 2016. Undaunted, the applicants preferred the present application for
review.
This review application arises from the Courts' decision (Hon. Mjasiri, JA,
Mmila, JA and Mkuye, JA) in Civil Appeal No. 145 of 2016 dated 10th April
2018. It is predicated under section 4(4) of the Appellate Jurisdiction Act [Cap.
141 R.E. 2002] as amended by Act No. 3 of 2016 (The AJA) and Rules 66(1) (a)
and 66(6) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The
application is supported by an affidavit sworn by Mr. Audax Kahendaguza
Vedasto, the applicants’ counsel.
Held: (i) Assignment of cases to justices and constitution of panel of justices is

purely an administrative function vested with the Honourable Chief Justice.
(ii) Under Rule 39(9) of the Rules, the date of judgment is the date of delivery
of that judgment. The date appearing in the Court judgment is simply the date it
was composed and signed by the honourable justices.
(iii) The Court's power to review its own decision is restrictive in scope. The
grounds upon which such an application can be entertained are well spelt under
Rule 66 (1) (a) to (e) of the Rules. The Court has powers, in the exercise of its
powers of review, to correct an error or omission provided that such error exists,
is manifest on the face of the record and has resulted in the miscarriage of justice.
(iv) The arbitrator or court has, save for the compensatory wages which has the
stipulated statutory minimum number of months payable, the discretion to award
any of the stipulated three reliefs once it finds that the termination of
employment is unfair. This being a judicial function, the discretion must
judiciously be exercised. This is the position of the law as it now stands.
(v) The exercise of discretional powers is not a ground of review. The court
decisions are very clear that it will not be a sufficient ground for review that
another Judge could have taken a different view of the matter. Nor can it be a
ground for review that the court proceeded on an incorrect exposition of the law
and reached an erroneous conclusion of law. Misconstruing a statute or other
provision of law cannot be a ground for review.
(vi) Since the applicants were denied the right to be heard only before the
Disciplinary Committee, the proceedings which were supposed to be quashed
and nullified were those of the Disciplinary Committee only not those before the
CMA and the High Court. Accordingly, the Court made an error and the same is
manifest on the record.
164
Application granted
Cases referred to
(1) Chandrankat Joshubhai Patel v. The Republic, [2004] T.L.R. 218;
(2) Omar y Makunja v. Republic, Criminal Application No. 22 of 2014;
(3) National Bank of Kenya Limited v. Ndungu Njau [1997] Eklr;
(4) Sun Life Assurance Company v. Jervis (1944) 1 All ER 469;
(5) International Medical & Technological University v. Eliwangu
Ngowi, High Court (Labour Division, DSM, Revision No.54 of
2008; and
(6) Abdi Adam Chakuu v. The Republic, Criminal application No. 2 of
2012.

(1) Rule 66(1) of the Court of Appeal of Tanzania Rules, 2009;
(2) Section 4(4) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2002] as
amended by Act No. 3 of 2016 ;
(3) Rules 66(6) of the Tanzania Court of Appeal Rules, 2009; and
(4) Section 40 (1) (c ), 44 (1) (d) and (e) of the Employment and Labour
Relations Act, No 6/2004.
Mr. Vedasto, forApplicants

Messrs. Safari, for Respondent
RULING OF THE COURT

25th March, 2019
LILA, J.A.: The applicants’ employment was terminated by the respondent

consequent upon which they registered a dispute with the CMA. Both the
applicants and respondent were aggrieved by the CMA decision. Each of them
preferred a revision application to the High Court (Labour Division) which were
consolidated and determined in Consolidated Revisions No. 187 and 199 of
2013. Still aggrieved, the applicants filed an appeal and the respondent filed a
cross appeal to the Court which were heard and determined in Civil Appeal
165
No.145 of 2016. Undaunted, the applicants preferred the present application for
review.
This review application arises from the afore said Courts' decision (Hon. Mjasiri,
JA, Mmila, JA and Mkuye, JA) in Civil Appeal No. 145 of 2016 dated 10th April
2018. It is predicated under section 4(4) of the Appellate Jurisdiction Act Cap.
141 R.E 2002 as amended by Act No. 3 of 2016 (The AJA) and Rules 66(1) (a)
and 66(6) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The
application is supported by an affidavit sworn by Mr. Audax Kahendaguza
Vedasto, the applicants’ counsel.
Briefly, the facts leading to the institution of the present application is this. The
present 18 applicants were among the 21 employees who were employed by the
respondent in various capacities. The record is silent on the status of each
applicant. It is apparent, however, that they were either Assistant Lecturers or
Tutorial Assistants. Their employment was terminated by the respondent
following a Disciplinary committee meeting held by the respondent. That
termination was challenged by the applicants before the Commission for
Mediation and Arbitration (CMA). For avoidance of doubts and ease reference
we quote, in extenso, the finding of the CMA as hereunder:
Kutokana na aina ya ushahtdi huo ni rai ya tume kwamba
walalamikaji hawakupewa nafasi ya kusikilizwa na kujitetea
(right to be heard) dhidi ya tuhuma za mgomo walizokuwa
wanakabiliwa nazo kabla ya kuachishwa kazi hivyo basi
pamoja na kwamba mlalamikiwa alikuwa na sababu za msingi
za kusitisha ajira za walalamikaji, alisitisha ajira hizo bila ya
kufuata, kuzingatia taratibu zilizowekwa kisheria hivyo
usitishwaji wa ajira za waiaiamikai; haukuwa halali kwa
mujibu wa matakwa ya Sheria ya Ajira na Mahusiano Kazini
Na. 6/2004.
It is noteworthy here that the above is what has been taken by the High Court to
mean that termination was substantively proper but procedurally unfair.
The CMA went ahead to consider the reliefs sought by the applicants. In its
ruling, the CMA paraphrased the reliefs sought by the applicants before it thus:
Walalmikaji kwenye CMA F No. 1 waliomba kurudishwa
kazini (reinstatement) au kulipwa fidia isiyopungua mishahara
ya miezi 12 kwa kila mfanyakazi, notisi likizo, kiinua
166
mgongo, alawansi za matibabu, usafiri, umeme, na nyumba
kwa kila mmoja, malipo ya nyongeza za mishahara yao,
gharama za kuendesha mgogoro, malipo ya makato ambayo
mwajiri wao alikuwa akiwakata kinyume cha sharia,
Malipo ya Kujtkimu toka walipoachishwa kazi gharama za
kusafirisha mizigo kurudi sehemu walipokuwa wanaishi kabla
ya kuajiriwa. Malipo ya michango yao katika mfuko wa Jamil
pamoja na vyeti safi vya utumishi.
Essentially, the CMA paraphrased the reliefs sought by the complainants
as reinstatement; compensation of not less than 12 months salaries;
notice pay, paid leave; severance allowance; medical allowance,
transport; power and housing allowance; salary increments, litigation
costs; refund of deductions unlawfully made by the employer on their
salaries; subsistence allowance; costs of repatriation to places of
recruitment; payment of contriburions made to the pension fund; and
clean certificate of service. [Editor’s translation].
In awarding the reliefs, the CMA had this to say:
Baada ya kutazama mazingira halisi ya jinsi zoezi zima
lilivyofanywa, muda ambao walalamikaji wamekuwa nje ya
ajira na athari mbalimbali ambazo katika hali ya kawaida mtu
yeyote mwenye uwezo wa kufikiri analazimtka kuamini kuwa
zimewapata walalamikaj, tume inaamuru walalamikaji
walipwe fidia ya mishahara ya miezi 12 kwa kila mlalamikaji,
kiinua mgongo kwa kila mmoja kwa muda alifanya kazi
katika taasisi ya ustawi wa jamiii pamoja na mshahra wa
mwezi mmoja (1) badala ya notisi, malipo hayo yakiwa ni
kwa mujibu wa vifungu vya 40(1)(c) na 44(1)(d) na (e) vya
Sheria ya Ajira na Mahusiano Kazini Na. 6/ 2004.
Walalamikaji hawastahili malipo mengine yoyote kwa kuwa
mbali na kutaja kwenye viapo vyao hakuna ushahidi wa
vielelezo kuthibitisha madai hayo hasa baada ya kupingwa na
mlalamikiwa.
The CMA, after considering various factors including the time that
complainants were away from employment, the way the complainants
were terminated from employment, and the trauma that the complainants
167
experienced awarded the complainants the following reliefs out of the
many reliefs sought by the complainants; 12 months’ salary
compensation; severance allowance for the period served, and one
month’s salary in liue of notice as provided in section 40 (1) (c ), 44 (1)
(d) and (e) of the Employment and Labour Relations Act, No 6/2004
[Editor’s translation]
Unhappy with the findings of the CMA, both sides preferred revision
applications to the High Court (Labour Division). As aforesaid, they were
consolidated and heard in Consolidated Revision No. 187 and 199 of 2013. Like
the CMA, the High Court was of the view that termination of service was
substantially proper but the procedure followed was unfair. A one month salary
in lieu of notice was maintained while the award of twelve months salary pay
was reduced to four month salary pay. Severance pay was also set aside. The
High Court declined to order reinstatement of the applicants.
As it were, both sides felt aggrieved. While the applicants filed an appeal to the
Court, the respondent filed a cross appeal which were heard and determined in
Civil Appeal No. 145 of 2016. In its decision, the Court substantially agreed with
the findings of both the CMA and tile High Court and, in part, stated:
Having so discussed we find that the suit involved all the
appellant, and that since the appellants were not charged and
heard before being terminated from their Employment it is
obvious that the respondent violated the cardinal principle of
right to be heard. Consequently, the appellants’ termination
was void and of no effect.
In the final event, we find the appellants appeal meritorious and allow it, while
the respondent's cross appeal has no merit and dismiss it in its entirety. Hence,
since the appellants were denied their fundamental right to be heard, we quash
all the proceedings of the CMA and the High Court and set aside their decisions
thereof. We further order that the appellants may if they so wish, institute
proceedings against their employer before the CMA so that their rights can be
determined. Given the fact that this matter originates from a labour
dispute, we order that each party shall bear its own costs.
The decision of the Court aggrieved the applicants. They are of the view that
there are errors apparent on the face of it resulting in the miscarriage of justice.
168
They consequently preferred the present application for review which is based
on two grounds that:
(a) That the Honourable Court, having found that the
termination of employment of the applicants was unfair
substantively and procedurally and that their appeal
succeeded, erred in law not to remedy them with the reliefs
prayed and/or provided by the law;
(b) That the Honourable Court, having not found any
problem with the proceedings and with the orders of the CMA
and the High Court that held the termination unfair
procedurally and that granting some reliefs in result and
having heard and determined all employment complaints
lodged by the applicants against the respondent's decision to
terminate their employment, erred in law to quash such
proceedings and such orders and also to order the applicants,
if they so wish, to institute proceedings against their employer
before the CMA for determination of their rights.
In addition to filing an affidavit in support of the application, the applicants dully
and timely filed written submission elaborating the grounds upon which the
application is based. In opposition, the respondent filed an affidavit in reply as
well as a reply written submission.
Before us when the application was called on for hearing was Mr. Audax
Kahendaguza Vedasto, learned advocate, who entered appearance representing
the applicants. He also held the brief of Mr. Emanuel Safari, learned advocate,
for the respondent who could not enter appearance on account of being bereaved.
At the outset Mr. Vedasto informed the Court that he had instructions from Mr.
Safari to proceed with the hearing of the application and that the latter urges the
Court to adopt and take into consideration the contents of the filed reply written
submission in determination of the application and that he had nothing to add.
On his part, Mr. Vedasto also urged the Court to adopt the written submission
filed and made some few elaborations, which we have noted are contained in the
written submission.
Admittedly, the submissions by both sides are long and supported by various
court decisions. We highly appreciate the efforts made by counsel of the parties
which resulted in the lucid and elaborate submissions which, no doubt, will assist
169
the Court reach a just decision. We commend them for that. We, however,
propose to refer to them whenever we find it relevant and desirable.
As we were about to commence hearing of the application, Mr. Vedasto brought
to the attention of the Court the concern raised by Mr. Safari by way of a letter
regard being non- inclusion of Madam Justice Mkuye, JA. who formed part of
the panel which determined the matter now subject of this review application.
Mr. Vedasto had no problem with the constituted panel of justices. We proposed
to provide our decision as part of this ruling.
We agree with Mr. Safari that the former panel constituted of Honourable
Justices Mjasiri, Mmilla and Mkuye and that Honourable Justice Mjasiri retired
from service. The present panel is constituted of Honourable Justices Mmilla,
Lila and Wambali. Mr. Safari has indicated that he is alive of the provisions of
Rule 66(5) of the Rules which require a review application as far as practicable
to be heard by the same justice or bench of justices that delivered the judgment.
We entirely agree with him that his contention is the correct position of the law.
We should, however, quickly inform him that assignment of cases to justices and
constitution of panel of justices is purely an administrative function vested with
the Honourable Chief Justice. We are unable to speculate why he decided to
constitute the panel the way he did. However, like Mr. Vedasto, we see no harm
with the change of members of the panel particularly so when we consider that
one of those justices who sat in that appeal has prevailed. After all, the law
permits such change.
Another preliminary matter raised by Mr. Safari is that a judgment of the
Court in Civil Appeal No.145 of 2016 dated 10/4/2018 subject of this application
for review does not exist. He accordingly urged the Court to strike out the
application. To say the least, this amounted to a preliminary objection brought
through the backdoor. This is unacceptable. That notwithstanding, we wish to
remind Mr. Safari that under Rule 39(9) of the Rules, the date of judgment is the
date of delivery of that judgment. The extracted order in the record (page 86-87)
is clear that judgment of the Court subject of this application for review was
delivered on 10/4/2018 which is the date reflected in the notice of motion. The
date appearing in the Court judgment (4/4/2018) is simply the date it was
composed and signed by the honourable justices.
We have duly considered the arguments by counsel of the parties. The applicants
complaints, comprehensively considered, seem to suggest that the dispute
between the parties has been exhaustively determined by the Court save for the
170
reliefs granted to the applicants not being spelt out clearly in accordance with
section 40(1) of the Employment and Labour relations Act, No. 6 of 2004
(ELRA) and the order quashing the proceedings of the CMA and High
Court and a direction that the applicants, if they still wish, may institute
proceedings against their employer before the CMA so as to determine their
rights.
As alluded to above, this is an application for review. The Court's power to
review its own decision is restrictive in scope. The grounds upon which such an
application can be entertained are well spelt under Rule 66 (1) (a) to (e) of the
Rules. That aside, the Court has developed some principles to be observed by
the Court when exercising such powers. For instance, in Chandrankat Joshubhai
Patel v. The Republic, [2004] T.L.R. 218 having examined a number of Indian
decisions the Court stated:
... Such an error must be an obvious and patent mistake and

not something which can be established by a long drawn
process of reasoning on points which there may conceivably
be two opinions. That a decision is erroneous in law is no
ground for ordering review. Thus, the ingredients of an
operative error are that first there ought to be an error second,
the error has to be manifest on the face of the record, and
third, the error must have resulted in miscarriage of justice.
It is worth noting here that the above cited case was decided in the backdrop of
the 1979 Court of Appeal Rules. However, closely examined, the principles laid
therein were the ones that were restated in Rule 66 of the 2009 Rules. [See Omar
y Makunja v. Republic, Criminal Application No. 22 of 2014 (Unreported)].
We can also borrow a leaf from a persuasive decision of the Court of Appeal of
Kenya in National Bank of Kenya Limited v. Ndungu Njau [1997] eKLR which
provides a guide when it stated:
… A review may be granted whenever the Court considers that
it is necessary to correct an apparent error or omission on the
part of the court. The error or omission must be self-evident
and should not require an elaborate argument to be
established. It will not be a sufficient ground for review of the
matter. Nor can it be a ground for review that the court
171
proceeded on an incorrect exposition of the law and reached
an erroneous conclusion of law. Misconstruing a statute or
other provision of law cannot be a ground for review.
In the instant case the matters in dispute had been fully
canvassed before the learned Judge. He made a conscious
decision on the matters in controversy and exercised his
discretion in favour of the respondent. If he had reached a
wrong conclusion of law, it could be a good ground for appeal
but not for review. Otherwise we agree that the learned Judge
would be sitting in appeal on his own judgment which is not
permissible in law. An issue which has been hotly contested
as in this case cannot be reviewed by the same court which had
adjudicated upon it. [Emphasis added].
As would be gleaned from the cited decisions, the Court has powers, in the
exercise of its powers of review, to correct an error or omission provided that
such error exists, is manifest on the face of the record and has resulted in the
miscarriage of justice.
The issue for determination by the Court is whether the two grounds for review
raised by the Applicants fall squarely within the ambits of the conditions for the
grant of review.
We will start with the first ground. Principally, the applicants’ complaint is that
after the Honorable Court had found that the termination of employment of the
applicants was unfair substantively and procedurally and that their appeal
succeeded, the applicants were left to go home with nothing because the Court
did not grant them with the reliefs prayed and/or provided by the law.
According to Mr. Vedasto after the Court had found that the termination of the
applicants' employment was void and of no effect, it meant that there was no
termination and the innocent applicants deserved to be awarded an order of
reinstatement. In bolstering his, argument he referred us to the persuasive
decision of the House of Lords of England in the case of Sun Life Assurance
Company v. Jervis (1944) 1 All ER 469 at page 470-1. He also contended that
as the law, section 40 (1) of the ELRA, provides for three possible consequences
in case the court finds that there is unfair termination the Court omitted to make
an order as to which amongst the three reliefs the applicants are entitled to. Put
172
it simply, Mr. Vedasto contended that, the Court made an omission to consider
the issue of reliefs.
On his part, Mr. Safari is emphatic that the orders made by the Court allowing
the appeal and dismissing the cross appeal, quashing all the proceedings of the
CMA and the High Court and setting aside their decisions thereof and ordering
the applicants to institute proceedings against their employer before the CMA if
they still wish their rights be determined are sufficient reliefs.
We have carefully examined the record and the judgment of the Court, in
particular, and we are satisfied that in grounds 6, 7, 8 and 9 of appeal the
applicants' complaints were in respect of both the CMA and the High Court not
making an order of reinstatement instead of ordering payment of compensatory
wages.
As demonstrated in the above quoted part of the Court's judgment, the Court
agreed with both the CMA and the High Court that the termination of
employment of the applicants was void and of no effect following failure by the
respondent to charge and accord the applicants the right of being heard. The
applicants' appeal was accordingly allowed. It is, however, apparent that nothing
was said about the reliefs.
We have indicated above that the CMA, after being satisfied that the applicants'
termination of employment was substantively proper but procedurally unfair, it
awarded the applicants some reliefs which were however reduced by the High
Court as indicated above. The Court is, in its judgment, silent on whether the
reliefs awarded by the High Court were maintained or not. This was definitely
an apparent error and as rightly submitted by Mr. Vedasto, the applicant left the
Court not knowing their fate. The error occasioned injustice to the applicants.
Given the fact that the Court silting on review can correct any omission done in
its decision, we think we are endowed with powers to consider the issue of reliefs
and make a finding thereon.
As rightly submitted by Mr. Vedasto, the law [section 40(1) of ELRA] provides
for the rights of the employee whose employment is brought to an end by the
employer unfairly. That section states:
If an arbitrator or labour court finds a termination is unfair, the
arbitrator or court may order the employer-
173
(a) To reinstate the employee from the date the
employee was terminated without loss of remuneration during
the employee was absent from work due to 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 of not less than
twelve months remuneration.
It is vividly clear that the arbitrator or court has, save for the compensatory
wages which has the stipulated statutory minimum number of months payable,
the discretion to award any of the above stipulated three reliefs once it finds that
the termination of employment is unfair. This being a judicial function, the
discretion must judiciously be exercised. This is the position of the law as it now
stands. It vests the arbitrator and the court with the discretion to decide which
remedy or relief fits certain circumstances. There must, however, be justification
for the decision to be made
Mr. Vedasto's contention that since the termination of employment was found to
be unfair then the innocent applicants ought to have been reinstated is interesting
but this is a Court of law hence bound to apply the law as it is until it is either
amended or declared null and void through proper procedures.
Further, according to the principles for review set in the case of National Bank
of Kenya Limited v. Ndungu Njau and Chandrankat Joshubhai Patel v. The
Republic (supra), the arbitrator and the High Court cannot be faulted for opting
to order the applicants be paid compensatory wages instead of being reinstated.
Even section 40(1) of ELRA provides for that discretion (See International
Medical & Technological University v. Eliwangu Ngowi, High Court
(Labour Division, DSM, Revision No.54 of 2008 (unreported) cited in the book
THE NEW EMPLOYMENT AND LABOUR RELATIONS LAW IN
TANZANIA, An Analysis of Labour Legislation in Tanzania, pages 142-144).
The exercise of discretional powers is not a ground of review. The two decisions
are very clear that it will not be a sufficient ground for review that another Judge
could have taken a different view of the matter. Nor can it be a ground for review
that the court proceeded on an incorrect exposition of the law and reached an
erroneous conclusion of law. Misconstruing a statute or other provision of law
cannot be a ground for review. In addition, it is the Court's decision which is the
subject of this review application not the High Court or CMA decision which
174
exercised the discretion. This position is in line with the Court's observation in
the case of Abdi Adam Chakuu v. The Republic, Criminal application No. 2 of
2012 (unreported) where the Court, after quoting in extenso Rule 66(1) of the
Rules, considered its scope and stated that:
It is apparent from the reading of Rule 66(1) of the Rules
governing review; the Jurisdiction of the Court is firstly very
limited to "review its judgment or order” and it neither extends
to reviewing the charge sheet, the applicant's plea during his
trial nor to the record of trial and appellate proceedings. This
means, it is out of jurisdictional bounds for an applicant, to
ground a motion seeking for a review on complaints based on
charge sheet, or what may be apparent on the record of
proceedings. (Emphasis added)
We, in view of the above, accordingly agree with Mr.· Safari's submission that
the contention by Mr. Vedasto is not an error on the face of the record and does
not qualify to be a ground of review.
Upon our serious consideration, we are inclined to agree with the award granted
by the CMA indicated above. In arriving at that finding, the CMA reasoned thus:
Ni rai ya tume kwamba ombi la kuwarudisha kazini
walalamikaji linawezekana lakini kwa aina ya shughuli
zinazoendeshwa na tasisi husika na muda ambao mgogoro huu
umechukuwa nafasi za walalamikaji zitakuwa zimechukuliwa,
hivyo dai hili la kurejeshwa kazini litakuwa gumu
kutekelezwa.
It is doubtless that the matter has taken too long to be concluded. The record
bears out clearly that the dispute was registered at the CMA on 2/9/2011. The
CMA pronounced its verdict on 11/4/2013, just close to one and a half year after
the matter was registered. The CMA found that to be a long time. Considering
that the respondent was dealing with training, we strongly think, that the CMA
was justified to arrive at that decision. It is now over eight years since tile dispute
was registered at the CMA. We equally think that the grant of an award of
reinstatement is improper. We therefore order the applicants be paid their
entitlements as were stated by the CMA which not only are in accordance with
the law but also commands to reason. The awards by the High Court are hereby
quashed and set aside for a simple reason that the compensatory wages awarded
175
are below the statutory minimum and no reason let alone good reason was given
for denial of other entitlements.
We now turn to consider the second ground upon which this application is based.
It is apparently clear that the CMA, the High Court and the Court concurrently
found that the applicants were not afforded an opportunity to be heard before the
Disciplinary Committee. This is reflected at pages 78 to 84 of the record of
appeal (pages 23 to 29 of the typed copy of the Court's Judgment). It is crystal
clear that the proceedings which resulted in the applicants' termination of
services were conducted by the disciplinary Committee. It is, as amply shown
above, before this Committee where the applicants were not properly charged
and were denied the right to be heard. We, in the circumstances, agree with Mr.
Vedasto's submission that it was incorrect for the Court to hold at page 79 of the
record that:
In our view, after the High Court ruled that theappellants were
not given opportunity to be heard in the Disciplinary
Committee of which we subscribe, it was required to nullify
the proceedings and the decision of the CMA and order of the
appellants to be served properly and heard before the
Committee, instead of proceeding to determine the application
on merits as it did.
The same error was repeated at page 84 (page 29 of the copy of the typed Court's
judgment) of the record where the court stated that:
Hence, since the appellants were denied their fundamental
right to be heard, we quash all the proceedings of the CMA
and the High Court and set aside their decisions thereof.
Since the applicants were denied the right to be heard only before the
Disciplinary Committee, the proceedings which were supposed to be quashed
and nullified were those of the Disciplinary Committee only not those before the
CMA and the High Court. We are accordingly convinced that the Court made an
error and the same is manifest on the record. We therefore correct that error by
removing the above parts of the Court's judgment and replace them with the
words "we quash all the proceedings of the Disciplinary Committee and the
decision thereof." It therefore follows that the proceedings before the CMA and
the High Court remain intact and valid. And, the Court in its judgment, as rightly
submitted by Mr. Vedasto, did not fault them in any way. Similarly, the order by
176
the Court that "we further order that the appellants may, if they so wish, institute
determined'' was also erroneously made. Given the fact that the proceedings
before the CMA are still valid instituting another proceeding before it would be
undesired. That was an error apparent on the face of the record which we hereby
corrected by removing it from the Court's judgment. In fine, the application is
granted to the extent indicated herein. Each party shall bear its own costs.
Application granted
ELIA KASALILE & 20 OTHER v. THE INSTITUTE OF SOCIAL

WORK
AT DAR ES SALAAM
(MJASIRI, MMILLA, and MKUYE, JJ.A.)
Dar es Salaam, Mipawa, J. dated 4th December, 2015 in Consolidated Revision
No.187 of 2013 and Revision No.199 of 2013 from the decision of CMA
(Ngowi, P. dated the 11th April, 2013 in CMA/KIN/678/11)
Representative suit - CMA F1 allegedly filled in and signed by first appellant
without indicating that he was mandated by the 20 other employees to fill, sign
and file the labour dispute on their behalf; and no application for a
representative suit was filed seeking leave to represent them – Whether the
dispute before the CMA was preferred by one employee or it involved even the
other 20 appellants.
Procedural requirement - Termination letters only referred to the Public
Service· Regulations, 2003 and the Employment and Labour Relations Act, 2004
- Respondent did not produce anything in the CMA such as charges or
notifications/ letters alleged to have been served to the appellants - Whether the
appellants were served with charges preferred against them and notifications of
hearing before the Disciplinary Committee; and afforded an opportunity to be
heard.
177
Termination of employment – Reasons for termination - Whether the reason for
termination was disclosed and if so, whether it was proper to give a different
reason from the one stated in the termination letters.
The appellants were up to 17th August, 2011 employed by the respondent. On
17th August, 2011 their employment was terminated after having allegedly
participated in an unlawful strike. Aggrieved by the termination, on 2nd
September 2011 the appellants referred the matter to the Commission for
Mediation and Arbitration (the CMA) opposing the decision of the employer.
The CMA entertained the matter and found that their termination was
substantively fair but procedurally unfair for not giving the appellants the right
to defend themselves during the disciplinary hearing. The CMA awarded each
appellant compensation of 12 months' salary, severance allowance, and one
month's salary in lieu of Notice. Aggrieved, both the respondent and the
appellants lodged revision applications No. 187 of 2013 and 199 of 2013
respectively before the High Court (Labour Division) whereby the High Court,
in the consolidated applications, found that the appellants participated in an
unlawful strike warranting their termination. However, the appellants'
termination was vitiated because they were not afforded the right to be heard.
The High Court went further to determine the reliefs to which the parties were
entitled and reduced the compensation awarded to the appellants from 12
months' salary to 4 months' salary; set aside the severance allowance; and upheld
the one month's salary in lieu of the Notice. Still aggrieved, the appellants
preferred this appeal.
Held: (i) Since the dispute at the CMA was filed by the appellants in accordance
with section 86(1) of ELR Act, Rule 12(1) read together with Rule 5(2) and (3)
of the Mediation Rules, then it involved all the 21 appellants. The contention
that the appellants ought to have filed an application for a representative suit
under Order VIII rule 7 of the Civil Procedure Code, [Cap. 33 R.E 2002] cannot
stand. The reason is clear that, there are specific provisions under the labour laws
which provide for the mode of filing of labour disputes involving more than one
employee.
(ii) Where disciplinary proceedings may lead to termination of the employee's
employment, the employer has the duty to prepare a formal charge against such
an employee.
(iii) In this case, the respondent's termination of the appellants' employment
without giving them the opportunity of being heard, violated the Constitutional
right on principles of natural justice, therefore, it was void and of no effect.
178
(iv) The fact that the respondent gave a different reason for termination in the
termination letters which is "Makosa ya Kiutumishi" and that of "participating
in an unlawful strike" through media later, which was not a proper means of
communication unless there was an order of the court for a substituted service,
proves that respondent had no valid or fair reason for the appellants' termination.
Coupled with the reason that fair procedure before termination was not followed,
it vitiates the whole process.
(v) The suit involved all the 21 appellants; and that since the appellants were not
charged and heard before being terminated from their employment, it is obvious
that the respondent violated the cardinal principle of right to be heard.
Consequently, the appellants' termination was void and of no effect.
Appeal allowed, cross appeal dismissed

Cases referred to
(1) Mbeya- Rukwa Auto Parts and Transport Ltd. v. Jestina George
Mwakyoma, (2003) T.L.R. 251;
(2) Air Services Ltd v. Minister for Labour and 2 Others, (1996) T.L.R. 217;
(3) Lekengere v. Minister for Tourism (2000) TLR;
(4) Security Group (T) Ltd. v. Samson Yakobo (Revision No. 171 of 2011);
(5) Cable Television Network (CTV) Ltd v. Athumani Kuwinga, Revision No
94 of 2009;
(6) Security Group (T) Ltd. V. Kisozi Masibe & 7 Others, Revision
Application No. 273 of 2014 HC;
(1) Article 13 (6) (a) of the Constitution of United Republic of Tanzania.
(2) Section 86(1) of the Employment and Labour Relations Act, 2004
(3) Section 37(1) of the Employment and Labour Relations Act, 2004
(4) Rule 12(1) of the Labour Institutions (Mediation and Arbitration) Rules,
(5) Rule 5(2) and (3) of the Labour Institutions (Mediation and Arbitration)
Rules, 2004, Government Notice No. 64 of 2007.
(6) Order VIII rule 7 of the Civil Procedure Code, [Cap. 33 R.E 2002]
(7) Order I rule 13 of the Civil Procedure Code, [Cap. 33 R.E. 2002]
(8) Regulations 41(2) and 44(1) of the Public Service Regulations 2003 (GN
No.168 of 2003)
179
Mr. Vedasto, for Appellants
Mr Safari and Michael, for Respondent

10th April, 2018
MKUYE, J.A.: The appellants, Elia Kasalile and 20 others were up to 17th
August, 2011 employed by the Institute of Social Work (ISW), the respondent,
as Assistant Lecturers and Tutorial Assistants on permanent terms. On 17th
August, 2011 their employment was terminated after having allegedly
participated in a strike from 28th June 2011 till 21st July 2011. Aggrieved by the
said termination, on 2nd September 2011 the appellants referred the matter to the
Commission for Mediation and Arbitration (the CMA) opposing the decision of
the employer. The CMA entertained the matter and found that though the
respondent had the right to terminate their employment substantively, the
termination was flawed for the reason that the appellants were not given a chance
to defend themselves during disciplinary hearing. It ruled that the whole process
of termination was unfair as per section 37(2) of the Employment and Labour
Relations Act, No. 6 of 2004 (the ELR Act). The CMA awarded each appellant
compensation of 12 months' salary, severance allowance, and one month's salary
in lieu of Notice.
Aggrieved, both the respondent and the appellants lodged revision applications
No. 187 of 2013 and 199 of 2013 respectively before the High Court (Labour
Division) whereby the High Court, in the consolidated applications, dealt with
among other issues, two issues; namely one, whether there was a strike; and two,
whether the right to be heard was afforded to the appellants before termination.
The High Court found on the first issue that the appellants were involved in a
strike and that since the allegedly organized and conducted strike was based on
a dispute on a right and not on interest contrary to section 80(1) (a) of the ELR
Act, then it warranted termination of their employment. As to the second issue,
the High Court held that the appellants' termination was vitiated because they
were not afforded the right to be heard. The High Court went further to determine
the reliefs to which the parties were entitled and reduced the compensation
awarded to the appellants from 12 months' salary to 4 months' salary; set aside
the severance allowance; and upheld the one month's salary in lieu of the Notice.
180
Still aggrieved, the appellants have preferred this appeal while fronting 12
grounds of appeal as follows:
1. That the High Court erred in law by holding to the effect
that an employer can legally terminate an employee's
employment without specifying the offence committed
leading to termination.
that the CMA to which the appellants referred their
challenge of termination of their services was legally
entitled to hold that the termination was fair on a reason not
stated by the employer while terminating the employees;
3. That the High Court, having concluded that the appellants
were not served with any disciplinary charge and were not
given an opportunity of being fully heard, erred in law to
proceed to hold that the termination consequently reached
was valid and effective in law;
4. That the High Court erred in law to ignore the Court of
Appeal's decision in Mbeya – Rukwa v. Jestina Mwakyoma
(2003) T.L.R. 251 at p.261 to the effect that a decision
reached without fully hearing a person affected by it is void
and of no effect,
that termination of 21 employees for purportedly taking part
in a purported strike could be Justified without establishing
a part specifically played by each of the 21 employees in the
alleged strike;
6. That the High Court erred in law to hold to the effect that
absence of vacancy in the employer's establishment is not
an issue of fact needing allegation and proof thereof before
a tribunal deciding the matter;
absence of vacancy in the employer's establishment in itself
a lawful reason of not ordering reinstatement of an
employee who is found to have been unfairly terminated;
an employee whose employment has been found to have
been terminated unfairly who is not reinstated is legally not
181
entitled to any amount of wages except the compensatory
wages provided by the law;
9. That the High Court erred in law in holding to the effect that
once it has made up its mind to pay compensation for an
employee whose employment has been terminated unfairly
the High Court {Labour Division) or the CMA has a
discretion to give that employee payment of remuneration
of less than 12 months of that employees' wages;
lack of qualification to the right to repatriation in respect of
some of the complainants before the Tribunal disqualified
all the complainants from that right;
it was legally justified to ignore the decision of the Court of
Appeal in Lekengere v. Minister for Tourism (2000) TLR
and that of the High Court (Labour Division) in Security
Group (T) Ltd. v. Samson Yakobo (Revision No. 171 of
2011) both to the effect that, what matters is that sufficient
evidence to support ones case is available; and not that each
of the several litigants in the case has himself testified
towards denying the 21st appellants relief of the case; and
even having the respondent failed to make up its case that it
terminated employment of the appellants fairly, no
appellant who did not testify would be entitled to any relief.
The appellants have urged us to set aside the decision of the High Court which
dismissed their case and partly granted the respondent's case; and make an order
for their reinstatement together with entitlement of all wages from the date of
their termination to their reinstatement.
The respondent also filed a cross appeal, the notice of which was filed on
10/10/2016 with 4 grounds to the effect that:
1. That, the High Court Judge grossly erred in law by not
finding and holding that labour dispute No.
CMA/DSM/KIN/678/11 before the CMA was referred by
one employee only namely Elia Kasalile;
182
2. That, the High Court Judge grossly erred in law by finding
and holding that appellant's termination was procedurally
unfair on ground of lack of proof of service;
3. That, the High Court Judge grossly erred in law by not
finding and holding that the 1st appellant (Elia Kasalile) was
not mandated by the other 20 appellants to fill CMA Fl and
file Labour Dispute No. CMA/DSM/KIN/678/11 before the
CMA on behalf of the said 20 others; and
4. That, the High Court Judge grossly erred in law by finding
and holding that it was the holding of the High Court (Labour
Division) in Revision Application No. 273 of 2014 between
Security (T) Ltd. v. Kisozi Nasibu and 7 Others that where
there are numerous employees filing dispute to the CMA one
can fill in the said form and indicate the names of the other
employees to the dispute.
When the appeal was called on for hearing all the appellants were represented
by Mr. Audax Vedasto, learned counsel; while the respondent enjoyed the
services of Mr. Emmanuel Safari, assisted by Mr. Nazario Michael, both learned
advocates.
Both counsel submitted at length on all grounds of appeal and cross appeal
through written and oral submissions, we are very grateful for their industry and
it has been of much assistance in our deliberations. However, we wish to point
out that after having carefully gone through all the grounds we have observed
that the matter can conveniently be disposed of on the basis of grounds Nos. 1,
2, 3 and 4 of the memorandum of appeal and all the 4 grounds of the cross appeal
which basically fall under three issues without necessarily dealing with all the
grounds. The said issues are:
1) Whether the appellants were served with charges preferred
against them and notifications of hearing before the
Disciplinary Committee; and afforded an opportunity to be
heard.
2) Whether the reason for termination was disclosed and if so,
whether it was proper to give a different reason from the one
stated in the termination letters.
3) Whether or not the Labour Dispute No. CMA/DSM/KIN
678/11 before the CMA was preferred by one employee
183
namely, Elia Kasalile or it involved even the other 20
appellants.
At the very outset, we wish to point out that for convenience and smooth flow
of our decision, we have opted to begin with the third issue regarding the
involvement or non-involvement of all the appellants in Labour Dispute No.
CMA/DSM/KIN 678/11 before the CMA.
As correctly argued by both counsel, section 86 (1) of the ELR Act and Rule
12(3) of the Mediation Rules require the labour dispute before the CMA to be
filed through a prescribed form. The said provisions provide that:
86(1): Dispute referred to the Commission shall be in the
prescribed form.
R. 12(1): A party shall refer a dispute to the Commission for
Mediation by completing and delivering the prescribed form
('the referral document"). [Emphasis added].
The Form referred to under the above cited provisions is CMA F. No. 1 set out
in the Schedule to the Employment and Labour Relations (Forms) Rules 2007
(GN No. 65 of 2007), (the Forms Rules). Strictly speaking, the above provisions
emphasize that the labour complaint which is brought before the CMA must be
in the prescribed form.
Besides that, Rule 5(2) and (3) of the Mediation Rules allows one person who is
mandated by other employees in writing, to sign and institute the labour dispute
involving more than one employee. It stipulates as follows:
(2) Where proceedings are jointly instituted or opposed by
more than one employee, documents may be signed by an
employee who is mandated by the other employees to do so.
(3) Subject to sub-rule (2), a list in writing of the employees
who have mandated a particular employee to sign on their
behalf, must be attached to the document. This list must be
signed by the employees whose names appear on it.
[Emphasis added]
Moreover, it is worthwhile to note that, the requirement of attaching a list of

names is not only provided under Rule 5 (2) and (3) of the Mediation Rules but
it is also reflected in an item inserted in the same CMA F1 itself with a direction
184
that "If there is more than one other party, write the details of the additional
parties on a separate page and staple it to this Form”.
In the instant case, it is common ground that the CMA F l as shown at
page 11-14 of the court record was filled and signed by the 1st appellant, Elia
Kasalile, and was referred to the Commission. This was in compliance with
section 86 (1) of the ELR Act and Rule 12 (1) of Mediation Rules which require
that the labour dispute to be lodged to the CMA must be in the prescribed form.
Admittedly, our perusal of the CMA F l has revealed that paragraphs 1 and 2
seem to give details of only one person. This could be due to the manner that
Form was designed as it asks for the particulars of a single person. However,
paragraph 4 of the same Form at pages 12 to 13 of the record indicate inclusion
of all appellants in as much as it refers to the reliefs claimed by the employees
or for each employee. We propose to reproduce part of the said paragraph as
hereunder:
OUTCOME OF MEDIATION
What outcome do you seek?
1) ····
2) In case the employer fails to reinstate the employees he is
obliged to pay the following:
a) compensation of not less than 12 months' salary
(remuneration) to each employee;
b) ...
c) ···
d) ···
e) medical allowance, transport and housing allowance for
August 2011, for each employee;
f) unpaid annual salary increment for each employee;
g) payments of salaries for the period that employees were
kept out of employment;
h) monthly medical housing, energy and transport
allowance for each employee for the period that the
employees were kept out of employment;
i) …
j) …
k) certificate of service to each employee;
185
I) compensation of all unauthorized deductions on
employees' salaries... [Emphasis added].
On the other hand, by virtue of Rule 5(2) and (3) of the Mediation Rules, the 2nd
to 21st appellants as shown at page 17 and 18 of the court record gave a notice
mandating Elia Kisalile to sign on their behalf through a list of their names in
the separate piece of paper and signed against their names on 2/9/2011, the date
when the CMA F l was signed and attached to the said CMA F l filed at the
CMA. This shows that since the dispute at the CMA was filed by the appellants
in accordance with section 86(1) of ELR Act, Rule 12(1) read together with Rule
5(2) and (3) of the Mediation Rules, then it involved all the 21 appellants. As
such, we do not think that the contention by Mr. Safari that the appellants ought
to have filed an application for a representative suit under Order VIII rule 7 of
the Civil Procedure Code, [Cap. 33 R.E 2002] can stand. The reason is clear that,
there are specific provisions under the labour laws which provide for the mode
of filing of labour disputes involving more than one employee.
We have considered the cases of Cable Television Network (CTV) Ltd v.
Athumani Kuwinga, Revision No 94 of 2009 and Security Group (T) Ltd. V.
Kisozi Masibe & 7 Others, Revision Application No. 273 of 2014 HC (Labour
Division) (unreported) cited by the respondent, but we are settled in our mind
that they are not applicable to this case. We say so because in Cable's case
(supra) the High Court struck out the dispute because the CMA Fl was found to
be incomplete for failure to indicate the date when the dispute arose which is not
the issue in this case. As to the Security's case (supra), we agree with both
counsel that it is distinguishable because in that case one person filled the CMA
F l and indicated names of other employees in the dispute, and the Hon. High
Court Judge just made an observation that it was ideal for each employee to fill
his/her own name in a single form and sign at the end. He did not make a finding
that each party must fill his / her form. It was just an orbiter dictum.
But again, assuming the respondent perceived that the dispute involved the 1st
appellant alone can it be said she was prejudiced? With respect, we think not! In
our view, as was rightly argued by Mr. Vedasto, the respondent was not
prejudiced at all. We say so because, in her statement in reply (page 19) to the
CMA F l, affidavits of DWl, DW2 and DW3, their responses during hearing
before CMA and her final submissions, the respondent made reference to all 21
appellants. It is our view that, if the respondent perceived that the dispute
involved only one party, her responses would not have covered all the appellants.
186
They would have made reference to only one person. But all the same, even if
found that there was such an anomaly, we think in our considered view, it ought
to have been raised at the earliest possible time as provided for under Order I
rule 13 of the Civil Procedure Code, [Cap. 33 R.E. 2002] which provides:
All objections in the ground of non-rejoinder or misjoinder of
parties shall be taken at the earliest possible opportunity and,
in all cases where issues have not been settled, or before such
settlement unless the ground of objection has subsequently
arisen; and any such objection not so taken shall be deemed
to have been waived [Emphasis added]
In this case, since the respondent failed to raise such issue at the earliest
opportune time, it means that she waived it.
Given all these circumstances, we do not subscribe to the respondent's claim that
since the CMA F l was filled by the 1st appellant, then the case involved only the
1st appellant. We are satisfied that the dispute filed before the CMA did not only
involve the first appellant (Elia Kasalile) but it also involved all the other 20
appellants.
We now turn to the issue of whether the appellants were served with charges
preferred against them and the notices of hearing at the Disciplinary Committee;
and were afforded an opportunity to be heard.
Essentially, this issue covers grounds Nos. 3 and 4 of the memorandum of appeal
and ground No. 2 of the cross appeal. It is noteworthy that both the learned
counsel, like the CMA and the High Court's findings, are at one that the
appellants were not heard.
At page 3010 of the record, 2nd paragraph of the decision of the CMA, the
Commissioner was satisfied that the appellants were not served with charges and
notices of hearing and hence, were denied their Constitutional right to be heard
before being condemned. We quote what the CMA stated:
Tume baada ya kupitia ushahidi wa pande mbili kwa kina
imegundua kwamba hakuna ushahidi wowote uliotolewa na
mlalamikiwaji wa kuonyesha kwamba walalamikaji walipewa
hati zao za mashtaka wala wito wa kuitwa kuhudhuria
kwenye kikao chochote cha nidhamu kama i!ivyodaiwa na
mashahidl wote watatu wa mlalamikiwa... Kwamba,
187
Japokuwa shahidi wa tatu DW-3 alisema kwamba
aliwapelekea wakakataa, bado mlalamikiwa ameshindwa
kuwasiiisha nakala hata mo}a kama kielelezo cha hati za
mashtaka na barua za wito ambazo inadaiwa walizikataa
kuzipokea. [Emphasis added].
It is worthy to note that, where disciplinary proceedings may lead to termination
of the employee's employment, the employer has the duty to prepare a formal
charge against such an employee. Regulations 41(2) and 44(1) of the Public
Service Regulations 2003 (GN No.168 of 2003) are pertinent on this aspect. The
said regulations state as follows:
41(2) Formal proceedings shall be instituted where in the
opinion of the disciplinary authority the disciplinary offence
which a public servant is alleged to have committed is of such
gravity of offence which may warrant his dismissal, reduction
in rank or reduction in salary”
44(1) No formal proceedings for disciplinary offence shall be
instituted against a public servant unless he has been served
with a charge or charges stating the nature of offence,
which he is alleged to have committed. [Emphasis is added].
In this case, DW1 one Mlwande Madihi who was the acting Principal of the
respondent, said he prepared the disciplinary charges and notifications in respect
of the appellants. DW2 Netty Namkwasa, the secretary to the Principal, said she
was given letters by DWl and she called and sent messages to the appellants to
collect them but after refusing she took them back to her boss. DW 3, Mussolin
Mshanga said he was given the letters to serve the appellants and he served them
at the offices and their homes though, he said, he did not know whom he served.
After having examined the evidence of DWl, DW2 and DW3 we have failed to
glean any evidence which proves that there were charges and notifications
prepared of which the appellants refused service. We say so because, though
DW1 said he prepared the disciplinary charges and notifications, he did not
explain the kind of charges or notifications he prepared or mention against whom
among the appellants such charges and notification of hearing were prepared and
handed to DW2 for service. Also, he did not attach them to his affidavit or
produce them in the CMA. DW2 on her part said she called or sent a message to
only three appellants, who responded to the call but refused service. This
188
evidence, however, contradicted with her averment in her affidavit that she
called all of them.
Further to that, she elaborated that the message she sent read:"Fika kwa
mkuu wa chuo kuna ujumbe wako muhimu sana." However, in our view,
even if such message was sent, it did not show that it related to "charges" or
"notification" which were in connection with the disciplinary hearing. As to
DW3, he said he was given 21 letters to serve 18 appellants who were in the list.
According to him, he served them at their offices and their homes. Nevertheless,
he did not explain as to who identified the appellants to him, and to whom he
served at the offices and those he served at their homes, taking into account that
he was a stranger to the institute. And worse enough, when DW3 was cross
examined he admitted that he did not know who he served. This means that he
could have served anyone who came across him.
With all these surrounding factors, we are satisfied that there were no such
charges and notifications prepared and served to the appellants as required by
the law. We agree with both the CMA and the High Court that there was no proof
of service of charges and notification of hearing. We also hold that, under the
circumstances even the ex-parte hearing conducted by the Disciplinary
Committee under the provisions of Rule 13(6) of the Code of Good Practice was
prematurely done since there were no tangible efforts to serve the appellants.
As regards to the issue of whether the appellants were afforded an opportunity

to be heard, we think it cannot detain us much. As was alluded to earlier on, both
the CMA and the High Court ruled that the appellants were denied their right to
be heard. At page 3011 of the record para 5 of the CMA's decision the Arbitrator
remarked:
Kutokana na aina ya ushahidi huo ni rai ya tume kwamba
walalamikaji hawakupewa nafasi ya kusikilizwa na
kujitetea (right to be heard) dhidi ya tuhuma za mgomo
usiokuwa halali walizokuwa wanakabiliwa nazo kabla ya
kuachishwa kazi, hivyo basi pamoja na kwamba mlalamikiwa
alikuwa na sababu za msingi za kusitisha ajira za
walalamikaji, alisitisha ajira hizo bila kufuata/kuzingatia
taratibu zilizowekwa kisheria hivyo usitishaji wa ajira za
walalamikaji haukuwa halali kwa mujibu wa matakwa ya
189
Sheria ya Ajira na Mahusiano Kazini Na. 6/2004.
[Emphasis added].
In addition to that, the High Court on the exercise of its revisional powers upheld
this finding that the termination of appellants' employment was vitiated by lack
of proof of proper service of notice of hearing. It observed at page 3032 as
follows:
The act of employer failing to have proper proof of service
for call of disciplinary hearing partly polluted the process
of termination on procedural aspects. The arbitrator's
holding on procedural unfairness is upheld. [Emphasis
added].
In our view, after the High Court ruled that the appellants were not given the
right to be heard in the Disciplinary Committee of which we subscribe, it was
required to nullify the proceedings and the decision of the CMA and order the
appellants to be served properly and heard before the Disciplinary Committee,
instead of proceeding to determine the application on merits as it did. The reason
behind this is that the principles of natural justice require a party not to be
condemned unheard. The other equally important reason is to discourage rash
and arbitrary actions against employees. (See: The Book titled The Formation
and Termination of Employment Contracts in Tanzania, Hamidu Milulu
(Advocate), June 2013, at page 131).
In the case of Mbeya- Rukwa Auto Parts and Transport Ltd. v. Jestina
George Mwakyoma, (2003) T.L.R. 251 (supra), the High Court revoked the right
of occupancy of M/S Kagera and the appellant without affording them an
opportunity to be heard though M/S Kagera had once occupied and transferred
it to the appellant but was allocated to the respondent before acquiring her
certificate of occupancy. The Court held that:
The right of hearing is a fundamental constitutional right in
Tanzania by virtue of Article 13 (6) (a) of the Constitution.
The Court went further to state that:
The judge's decision to revoke the rights of M/S Kagera and
the appellant, without giving them opportunity to be heard,
was not only a violation of the Rules of natural justice, but also
190
a contravention of the Constitution, hence void and of no
effect.
Even in this case, the respondent's termination of the appellants' employment
without giving them the opportunity of being heard, violated the Constitutional
right on principles of natural justice, therefore, it was void and of no effect.
With regard to the issue of whether the reason for termination was disclosed and,
if so, whether it was proper to give a different reason from the one stated in the
appellants' termination letters, Mr Vedasto argued that the appellants were
terminated on an undisclosed offence contrary to section 37(1) of the ELR Act
and he cited the case of Air Services Ltd v. Minister for Labour and 2 Others,
(1996) T.L.R. 217 in support. He said, even the reason for termination stated in
the termination letters issued on 17/8/2011 of "Makosa ya Kiutumishi" which is
not provided under the law was different from the one given later through mass
media and stated in the respondent's affidavit of "participating in an unlawful
strike". He added that, after the CMA and the High Court found that the
appellants were neither charged nor heard, they ought to find the reason for
termination unfair.
On his part, Mr. Safari contended that the appellants' termination was for a valid
reason shown in the termination letters "Makosa ya Kiutumishi" which is a
general term, but the specific offence of participating in an unlawful strike was
communicated later to each appellant through media.
It is common ground that, the appellants' employment was terminated and their
letters of termination showed the reason for termination was "Makosa ya
Kiutumishi". In his testimony DW1 at the CMA tried to equate the terms
"Makosa ya Kiutumishi" and "participating in an unlawful strike” which he said
was communicated to each appellant through media. Mr. Safari submitted in
Court that "Makosa ya Kiutumishi" was a general term, but the specific offence
was of participating in an unlawful strike which was communicated later to each
appellant through media. He did not avail us with any authority for that stance.
To our understanding, calling and participating in an unlawful strike is among
the disciplinary offences provided for under Part VII which comprises sections
75-85 of the ELR Act. "Makosa ya Kiutumishi" is not among them. In addition,
Rule 14 of the Code of Good Practice Rules elaborates that a strike which does
not comply with the provisions of the ELR Act, constitutes a misconduct which
may justify termination of employment under sections 75-85 of the Act. It also
191
provides that where an employer wishes to charge an employee on a disciplinary
offence he must prepare a charge which is clear to enable the employee
understand the nature of the offence to which he is charged. It was, therefore,
expected that the offence of participating in an unlawful strike, being a specific
offence, would have been specifically shown in the charged offence; and in the
letters of termination rather than referring to " Makosa ya Kiutumishi" which is
taken as a general term for disciplinary offences. Besides that, much as the
respondent failed to avail us the authority for equating the two offences, she did
not explain why they had to use the so called general term "Makosa ya
Kiutumishi" while there are specific offences under sections 75-85 of the ELR
Act. Neither did they explain the reason for changing the type of the offence
which they said they communicated through media. As we have just ruled out
that there was no proof of service of charges or their existence, we think, the
respondent may have used the term "Makosa ya Kiutumishi" as she was not sure
of the offence committed by the appellants. But all the same, the decisive point
which remains is that "Makosa ya Kiutumishi" is not among the offences under
Part VII of the ELR Act the commission of which could lead to termination of
employment and as such, it was not proper to change them.
Likewise, section 37 of the ELR Act prohibits unfair termination of an employee.
Subsection (2) of that section provides for the circumstances which may lead to
unfair termination including failure to prove that the reason for termination is
valid; that the reason is a fair reason; or that the employment was terminated in
accordance with a fair procedure. Also rule 8(1) (c) and (d) of the ELR Code of
Good Practice Rules reiterates that the employer may terminate the employee's
employment if he has a fair reason as defined under section 37(2) of the ELR
Act.
In this case the fact that the respondent gave a different reason for termination
in the termination letters which is "Makosa ya Kiutumishi" and that of
"participating in an unlawful strike" through media later, which in our view, was
not a proper means of communication unless there was an order of the court for
a substituted service, proves that she had no valid or fair reason for the appellants'
termination. Coupled with the reason that fair procedure before termination was
not followed, it vitiates the whole process.
Having so discussed, we find that the suit involved all the 21 appellants; and that
since the appellants were not charged and heard before being terminated from
their employment, it is obvious that the respondent violated the cardinal principle
192
of right to be heard. Consequently, the appellants' termination was void and of
no effect.
In the final event, we find the appellants' appeal meritorious and allow it, while
the respondent's cross appeal has no merit and dismiss it in its entirety. Hence,
since the appellants were denied their fundamental right to be heard, we quash
all the proceedings of the CMA and the High Court and set aside their decisions
thereof. We further order that the appellants may, if they so wish, institute
determined. Given the fact that this matter originates from a labour dispute, we
order that each party shall bear its own costs.
Appeal allowed, cross appeal dismissed
EZEKIAH T. OLUOCH v. THE PERMANENT SECRETARY,

PRESIDENT’S OFFICE, PUBLIC SERVICE MANAGEMENT & 4
OTHERS
AT DAR ES SALAAM
(MWANGESI, KWARIKO, and KEREFU, JJA.)
(Appeal from the decision of the High Court of Tanzania, Main Registry at Dar
es Salaam, Khaday, J., dated the 18th day of April, 2018 in Miscellaneous Civil
Cause No. 18 of 2017)
Judicial review - Appellant applied for the orders of certiorari, mandamus, and
prohibition – Whether appellant proved the grounds for judicial review to justify
to issue the writs he prayed for - Regulation 37 of the Local Government
(Teachers Service Scheme) of 2016 G.N. No. 311 of 2016, read together with
section H. 19 (1) (2) of the Standing Orders for Public Service of 2009 and
Regulation 29 of the Public Service Regulations of 2003 G.N. No 168 of 2003
Judicial review - Appellant applied for judicial review- Whether there were
alternative remedies to judicial review
193
Leave without pay – Appellant, a public servant applied for leave without pay -
Whether applicant’s, employer was bound to grant leave without pay - section
H.19 of the Standing Orders.
In the High Court of Tanzania at Dar es Salaam, the appellant, invoked the
provisions of section 2(1) and (3) of the Judicature and Application of Laws Act
[Cap 358 R.E. 2002], section 19(2)(3) of the Law Reform (Fatal Accidents and
Miscellaneous Provisions) Act [CAP 310 R.E. 2002] (the Act), Rule 5(1)(2(3)
of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial
Review Procedure and Fees) Rules, 2014 Government Notice No. 324 of 2014
and section 95 of the Civil Procedure Code [CAP 33 R.E. 2002], and applied
for the following orders against the respondents; Certiorari to quash the
decisions of the first Respondent embodied in his letter with reference No.
CA.87164/01/A/9 dated 16h March, 2017; Mandamus to compel the first
Respondent to determine the application for leave without pay on merit and;
Prohibition to prohibit the Second, third and fourth Respondents from removing
the name of the Applicant from the register of public servants under their
mandates.
On the other hand, all the respondents strongly opposed the application
vide a counter-affidavit deposed by Lilian Machage, State Attorney. In the end,
the High Court dismissed the application for want of merit. The appellant was
discontented by that decision; hence, he has come before the Court on appeal.
Held: (i) In Tanzania the High Court is mandated to entertain matters of judicial
review in respect of the writs of certiorari, mandamus, and prohibition which
are provided under sections 17, 18 and 19 of the Law Reform (Fatal Accidents
and Miscellaneous Provisions) Act [Cap 310 R.E. 2002]
(ii) The first respondent can exercise legal powers in respect of teachers under
Regulation 37 of the Local Government (Teachers Service Scheme) of 2016
G.N. No. 311 of 2016, read together with paragraph H. 19 (1) (2) of the Standing
Orders and Regulation 29 of the Public Service Regulations. It is clear from the
provisions that, to remove or order for removal of a teacher from public service
is not among the first respondent's legal powers. However, teachers may be
removed from public service by the President as provided under Regulation 29
(1) of the Public Service Regulations.
194
(iii) The first respondent is neither the appointing nor the disciplinary authority
in respect of teachers. This is because, sections 3 and 5 (c) of the TSC Act and
Regulation 2 of the TSC Regulations provide that the Commission is the
appointing as well as the disciplinary authority in respect of teachers.
(iv) The first respondent usurped powers he did not have when he directed for
the removal of the appellant from the public service. Had he had any reason to
believe that the appellant had committed any offence, he should have reported
the same to the relevant authority for necessary action.
(v) Pursuant to section H.19 of the Standing Orders it is not a public policy to
grant leave without pay to employees. However, the first respondent is given
discretion to grant that leave upon being satisfied that it is in the public interest
to do so. There is no any provision of law which gives recourse to an employee
to go to court to challenge the refusal of the leave.

Cases referred to
(1) Rahel Mbuya v. Minister for Labour and Youth Development and Another,
(2) Sanai Murumbe and Another v. Muhere Chacha [1990] T.L.R 54;
(3) National Housing Corporation v. Tanzania Shoes and Others [1995]
T.L.R 251;
(4) Mbeya- Rukwa Auto Parts & Transport limited (supra);
(5) Margwe Erro and Two Others v. Moshi Bahalulu, Civil Appeal No
111;and
(6) Abbas Sherally and Another v. Abdul S.H.M. Fazalboy, Civil Application
No. 33 of 2002.

(1) Article 13 (6) (a) of the Constitution of United Republic of Tanzania;
(2) Regulation 37 of the Local Government (Teachers Service Scheme) of
2016 G.N. No. 311 of 2016;
(3) Section H. 19 (1) (2) of the Standing Orders for Public Service of 2009;
195
(4) Regulation 29 of the Public Service Regulations of 2003 G.N. No 168 of
2003;
(5) Sections 3 and 5 (c) of the TSC Act;
(6) Regulation 2 of the TSC Regulations;
(7) Section 2(1) and (3) of the Judicature and Application of Laws Act [Cap
358 R.E. 2002];
(8) Section 19(2)(3) of the Law Reform (Fatal Accidents and Miscellaneous
Provisions) Act [Cap 310 R.E. 2002];
(9) Rule 5(1) (2(3) of the Law Reform (Fatal Accidents and Miscellaneous
Provisions) (Judicial Review Procedure and Fees) Rules, 2014
Government Notice No. 324 of 2014; and
(10) Section 95 of the Civil Procedure Code [Cap 33 R.E. 2002].
Mr. Vitalis, for Appellant

Mr. Chang'a, Senior State Attorney, and Mr. Mohamed, State Attorney for
Respondents

06th January, 2020
KWARIKO, J.A.: In the High Court of Tanzania at Dar es Salaam, the

appellant, Ezekiah T. Oluoch invoked the provisions of section 2(1) and (3) of
the Judicature and Application of Laws Act [Cap 358 R.E. 2002], section
19(2)(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act
[Cap 310 R.E. 2002] (the Act), Rule 5(1) (2(3) of the Law Reform (Fatal
Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees)
Rules, 2014 Government Notice No. 324 of 2014 and section 95 of the Civil
Procedure Code [Cap 33 R.E. 2002], and applied for the following orders against
the respondents:
(a) Certiorari to quash the decisions of the first
Respondent embodied in his letter with reference
No. CA.87164/01/A/9 dated 16h March, 2017 to
wit;
196
(i) Removing the Applicant (appellant) from the
Public Service and;
(ii) Instructing the Applicant's employer to
deregister the Applicant (appellant) from
Public Service's register.
(b) For an order of Mandamus to compel the first
Respondent to determine the application for leave
without pay on merit and;
(c) An order of Prohibition to prohibit the Second,
third and fourth Respondents from removing the
name of the Applicant (appellant) from the register
of public servants under their mandates.
The application which was preferred through a chamber summons was supported
by the affidavit and the statement of the appellant.
On the other hand, all the respondents strongly opposed the application vide a
counter-affidavit deposed by Lilian Machage, State Attorney. In the end, the
High Court dismissed the application for want of merit.
The appellant was discontented by that decision; hence, he has come before the
Court on appeal. In the memorandum of appeal, the appellant raised fourteen
(14) grounds of appeal, which for reasons that will shortly come to light we need
not recite all of them herein.
At this juncture, we find it pertinent to reproduce the factual background of the
matter leading to this appeal. The appellant, was employed as a secondary school
teacher since 1993, thus a member of the Tanzania Teachers Union (Chama cha
Walimu Tanzania), popularly known by its acronym, CWT.
In May, 2000, the appellant successfully vied for a post of Deputy General
Secretary of the CWT. The tenure of the post was five years. Subsequently, the
appellant informed the fourth respondent about the election and he applied for a
secondment for a period of five years. However, he was granted leave for three
years from 2000 to 2003 on condition that at the expiration of that period he had
to choose either to return to the public service as a teacher or remain with the
CWT.
197
Upon expiration of the three years, in September, 2003, the appellant
sought for extension of time to cover the remaining two years of his tenure. It
was not until November, 2003 when the fourth respondent (the Secretary,
Teachers Service Commission), responded to the appellant's application by
asking him to choose between working with the CWT or return to his employer.
The appellant wrote a letter to express his dissatisfaction with those conditions
but there was no response.
As it happened, the appellant, again successfully contested for the same post for
the second term for another five years covering the period between 18/5/2005 to
18/5/2010. The appellant informed his employer about the re-election and
applied for leave without pay for five years, but there was no response. The
appellant again was re-elected for the third time for the period between
28/5/2010 to 27/7/2015, and he requested for leave without pay.
On 14/3/2011, the appellant received a letter from the first respondent, granting
him leave without pay retrospectively with effect from 1/7/2006 to 27/5/2010
and for another term from 28/5/2010 to 27/5/2015. The appellant was given
condition that at the expiration of the leave so granted, he would have to choose
either to return to his employer or to keep on working with the CWT. His
employer, the Secretary, Teachers Service Commission (the fourth respondent)
was also instructed to remove the appellant's name from the list of payrolls for
public servants. Further, in May, 2015, the appellant was re-elected for the same
post and he requested for leave without pay. In October, 2015, the appellant
received a letter from the first respondent requiring him to submit previous
approvals for leave without pay, which directive he complied with.
In respect of the appellant’s request for leave without pay, the first respondent,
vide a letter dated 25/11/2015 declined to grant leave without pay for the reason
that, the appellant had failed to decide with whom he wanted to work with
between his employer and the CWT with whom he had worked for a longer
period.
In the said letter, the appellant was informed that his return to the public service
could depend on the availability of the vacancy. The fourth respondent, was also
required to proceed with the formalities of removing the appellant's name from
the payrolls of the public servants for the duration of the appellant's leave without
pay.
198
In response to the foregoing, the appellant contested the first respondent’s
decision vide a letter dated 23/4/2016 insisting to be granted leave without pay
until May, 2020. It appears that he did not get a response.
Nonetheless, the appellant continued to work with the CWT until 22/2/2017
when he was served with a letter dated 20/2/2017 from the first respondent
requiring him to make a decision within seven days between returning to public
service or to remain with the CWT. In his reply, the appellant chose none of the
two, but reiterated his earlier request to be granted leave without pay.
Subsequently, the appellant received a letter dated 16/3/2017, from the first
respondent informing him that, since he had failed to respond to the letter dated
20/2/2017, the government had taken that he had decided to remain outside the
public service. For that reason, the fourth respondent was directed to remove the
appellant's name from the list of government servants. The appellant contested
the decision to remove him from the public service vide a letter dated 22/3/2017.
Moreover, the appellant was served with a letter from the Secretary General of
the CWT informing him that, he was suspended from the office pending
determination of the dispute between him and the first respondent concerning
the status of his employment. At that point the appellant filed the application for
prerogative orders against the respondents before the High Court.
At the hearing of the appeal, Mr. Timon Vitalis, learned advocate, appeared for
the appellant, while the respondents were represented by Mr. Hangi Chang'a,
learned Senior State Attorney, assisted by Mr. Rashid Mohamed, learned State
Attorney. Pursuant to Rule 106 (1) of the Tanzania Court of Appeal Rules, 2009,
the appellant filed written submissions on 10/10/2018 in support of the grounds
of appeal.
In view of the appellant's written submissions, we think this appeal can be
disposed of based on the following four grounds out of the fourteen:
1. That the High Court Judge erred in law in deciding that
the appellant did not prove the grounds for judicial
review in respect of the prerogative orders of certiorari,
mandamus and prohibition.
2. That the High Court Judge erred in law to decide that
the appellant had other Judicial remedies to challenge
the decision of the first respondent.
199
3. That the High Court Judge erred in law and in fact by
not finding that the denial by the first respondent to
grant leave without pay to the appellant was
discriminatory.
4. That the High Court Judge erred in law and in fact for
not finding that the first respondents refusal to grant
leave without pay and the wrongful termination of the
appellant amounted to contravention of the right to
freedom of association of trade unions specifically the
Tanzania Teachers’ Union which had exercised its right
to elect its leaders including the appellant by virtue of
its Constitution.
We have considered the grounds of appeal and the submissions from the counsel
for the parties. In our deliberations, we will deal with the grounds of appeal in
the manner they have been grouped and argued by the learned counsel.
The first ground is whether the appellant proved the grounds for judicial review
to justify the High Court to issue the writs he had pray for. In Tanzania the High
Court is mandated to entertain matters of judicial review in respect of the writs
of certiorari, mandamus, and prohibition which are provided under sections 17,
18 and 19 of the Act. Section 17 (2) thereof provides that:
In any case where the High Court would but for sub section
(1) have had jurisdiction to order the issue of a writ of
mandamus requiring any act to be done or a writ of
prohibition prohibiting any proceedings or matter, or a writ
of certiorari removing any proceedings or matter into the
High Court for any purpose, the Court may make an order
requiring the act to be done or prohibiting or removing the
proceedings or matter, as the case may be.
As intimated earlier, the appellant after receiving the letter from the first
respondent removing him from his employment, he decided to challenge the
same through judicial review.
For easy of reference we find it apposite at this point to reproduce the letter by
the first respondent to the appellant dated 16/3/2017 which by and large sparked
these proceedings thus:
200
YAH: KUFANYA UAMUZI BAADA YA
KUTORIDHIWA KWA NYONGEZA YA LIKIZO
BILA MALIPO NA KUTAKIWAKUREJEA KWA
MWAJIRI
Rejea barua yangu yenye Kumb. Na. CB,87/164/01 ya tarehe

20 Februari, 2017,
2. Katika barua yangu tajwa hapo juu ulitakiwa kuwasilisha
taarifa kuhusu uamuzi wako ama kurejea Serikalini au
kuajiriwa moja kwa moja na Chama cha Walimu Tanzania
(CWT). Hadi tarehe ya barua hii ikiwa ni zaidi ya siku ishirini
na tatu (23) tangu ulipotakiwa kufanya hivyo Ofisi yangu
haijapokea maelezo yoyote kutoka kwako.
3. Ninapenda kukuarifu kuwa kutokana na kushindwa kwako
kutekeleza maelekezo niliyotoa katika barua yangu niliyoitaja
hapa juu; Serikali inatafsiri kuwa umeamua kuendelea kuwa
nje ya Utumishi wa Umma.
4. Kwa sababu hiyo mwajiri wako wa awali anaelekezwa
kuondoa Jina lako kwenye orodha ya watumishi wake kuanzia
tarehe ya barua hii kwa kuwa wewe sio tena mtumishi wa
Umma.
Dkt. Laurean J.P. Ndumbaro

KATIBU MKUU (UTUMISHI)
As shown above, the first respondent directed for the removal of the appellant
from the public service after the appellant failed to abide to the conditions given.
At this juncture, we think it is appropriate to refer to the decision of the Court in
Sanai Murumbe and Another v. Muhere Chacha [1990] T.L.R 54 in which the
conditions were outlined which ought to be proved for one to succeed in an
application for judicial review. It was held thus:
The High Court is entitled to investigate the proceedings of a
lower court or tribunal or a public authority on any of the
following grounds, apparent on the record. One, that the
subordinate court or tribunal or public authority has taken into
201
account matters which it ought not to have taken into account.
Two, that the court or tribunal or public authority has not taken
into account matters which it ought to have taken into account.
Three, lack or excess of Jurisdiction by the lower court. Four,
that the conclusion arrived at is so unreasonable that no
reasonable authority could ever come to it. Five, rules of natural
justice have been violated. Six, illegality of procedure or
decision.
On the same matter see also the case of Rahel Mbuya v. Minister for Labour and
Youth Development and Another, Civil Appeal No. 121 of 2005 (unreported).
The question which follows now is whether the appellant proved any of the
conditions enumerated above against the first respondent. First, the appellant
complained that, the first respondent exceeded his powers when he ordered for
his removal from the public service. We have gone through the correspondences
between the appellant and the first respondent. What we have gathered is that,
they all related to the issue of grant and extension of leave without pay to the
appellant. As rightly argued by Mr. Vitalis, the first respondent can exercise legal
powers in respect of teachers under Regulation 37 of the Local Government
(Teachers Service Scheme) of 2016 G.N. No. 311 of 2016, read together with
paragraph H. 19 (1) (2) of the Standing Orders and Regulation 29 of the Public
Service Regulations. Regulation 37 of G.N. 311 of 2016 provides that:
(1) The Permanent Secretary (Establishment) may grant a
leave without pay to a teacher provided he is satisfied that
it is in the public interest to do so.
(2) Subject to sub-clause (1), the grant of such leave shall
take into consideration the government policy.
(3) The application for leave without pay shall be made
through the employer who shall forward it to the
Permanent Secretary (Establishment) with his
recommendations.
It was therefore under this provisions that the appellant requested for leave
without pay from the first respondent. Section H. 19 (1) of the Standing Orders
also provides that:
202
It is the Government's policy not to grant leave without pay to
employees. However, the Permanent Secretary
(Establishment) may grant leave without pay to public
servants provided that he is satisfied that it is for public interest
to do so. Such approval shall be obtained before a public
servant goes on leave without pay.
It is clear from the above provisions that, to remove or order for removal of a
teacher from public service is not among the first respondent's legal powers.
However, teachers may be removed from public service by the President as
provided under Regulation 29 (1) of the Public Service Regulations that:
Where the appointing authority is of the view that the
President should be invited in the exercise of the powers
conferred upon him by subsection (1) of section 24 of the
Act, the appointing authority shall, after consultation with the
respective Minister.,. furnish to the Chief Secretary through
the Permanent Secretary (Establishments) particulars of the
grounds warranting the exercise of the President.
According to this provision, it is only through the appointing authority that the
President can be invited to remove a teacher from public service in the public
interest. The duty of the first respondent in this respect is to forward the grounds
from the Minister responsible for teachers for the removal of a particular public
servant to the Chief Secretary. Therefore, it is only the President who has powers
to remove a public servant from public service in the public interest. Section 24
(1) of the Public Service Act (supra) provides that:
The President may remove any public servant from the service
of the Republic if the President considers it in the public
interest so to do. Except in the case of removal of a judge or
other judicial officers, the procedure for the exercise of these
powers shall be provided for in the Regulations.
Further, the first respondent is neither the appointing nor the disciplinary
authority in respect of teachers. This is because, sections 3 and 5 (c) of the TSC
Act and Regulation 2 of the TSC Regulations provide that the Commission is
the appointing as well as the disciplinary authority in respect of teachers. Section
3 provides that:
203
Appointing authority” in relation to teachers, means the
Teachers Service Commission.
And section 5 (c) thereof provides that: -
The function of the Commission shall be to-
(d) Appoint, promote and discipline teachers.
Moreover, Regulation 12 of the TSC Regulations provides that:

(1) The Commission shall, subject to section 5(c) of the Act,
have mandate of disciplinary control in respect of
primary and secondary Schools’ teachers employed in
the public service.
(2) The District Committee shall be the disciplinary
authority for any offence that warrants the following
action against a teacher of that respective district-
(a) dismissal;
(b) reduction in rank;
(c) reduction in salary; and
(d) stoppage of an increment.
According to the cited provision, it is the District Committee that have powers
of dismissal of a primary or secondary school teacher. The dismissal should be
reached upon disciplinary proceedings being conducted as provided for under
Regulations 13 and 15 of the TSC Regulations. Regulation 15 (1) categorically
provides that:
Formal proceedings shall not be instituted against a teacher in
the service, unless he has been served with a charge or charges
stating the nature of the offence, which he is alleged to have
committed.
Therefore, the first respondent usurped powers he did not have when he directed
for the removal of the appellant from the public service. Had he had any reason
to believe that the appellant had committed any offence, he should have reported
the same to the relevant authority for necessary action.
204
From the foregoing, we are of the settled view that, the first respondent exceeded
his powers and had no jurisdiction to order for the removal of the appellant from
public service.
The above conclusion brings us to the second condition for judicial review
complained of by the appellant; that is, there was violation of the rules of natural
justice. It is clear from the facts of the case that, the appellant was not accorded
the right to be heard before the first respondent ordered for his deregistration
from the public service register. The appellant was not served with a charge
stating the nature of the offence and required him to defend his case according
to the law. The right to be heard has been emphasized by the Court in various
decisions. Some of which are; National Housing Corporation v. Tanzania Shoes
and Others [1995] T.L.R 251, Mbeya- Rukwa Auto Parts & Transport limited
(supra), Margwe Erro and Two Others v. Moshi Bahalulu, Civil Appeal No 111
of 2014 (unreported) to mention but a few. In Margwe Erro and Two Others
(supra), the Court quoted the decision in Abbas Sherally and Another v. Abdul
S.H.M. Fazalboy, Civil Application No. 33 of 2002 (unreported), where it was
held that:
The right of a party to be heard before adverse action is taken
against such party has been stated and emphasized by the
courts in numerous decisions. That right is so basic that a
decision which is arrived at in violation of it will be nullified,
even if the same decision would have been reached had the
party been heard because the violation is considered to be a
breach of natural justice.
The right to be heard is also safeguarded in the Constitution. Article 13 (6) (a)
of the Constitution provides in the official version thus:
(6) Kwa madhumuni ya kuhakikisha usawa mbele ya sharia,
Mamlaka ya Nchi itaweka taratibu zinazofaa au
zinazozingatia misingi kwamba-
(a) wakati haki na wajibu wa mtu yeyote vinahitaji
kufanyiwa uamuzi wa mahakama au chombo kinginecho
kinachohusika, basi mtu huyo atakuwa na haki ya kupewa
fursa ya kusikilizwa kwa ukamilifu, na pia haki ya kukata
rufaa au kupata nafuu nyingine ya kisheria kutokana na
maamuzi ya mahakama au chombo hicho kinginecho
kinachohusika.
205
Literally translated, the sub-article in English reads:
(6) To ensure equality before the law, the state authority shall
make procedures which are appropriate or which take into
account the following principles, namely:
(a) When the rights and duties of any person are being
determined by the court or any other agency, that person shall
be entitled to a fair hearing and to the right of appeal or other
legal remedy against the decision of the court or of the other
agency concerned.
As regards the third condition complained of by the appellant, and from what we
have discussed above, it is clear that had the High Court considered the
communication and correspondence letters between the appellant, the first and
the fourth respondents, it would have found that the first respondent had no legal
powers or justification at all, to order for the deregistration of the appellant from
the public service and that the appellant had proved the first and second
conditions for judicial review.
In the circumstances of what we have discussed above, we have no doubt that
the first ground of appeal has merit.
As regards to the second ground as to whether there were other judicial remedies
available to challenge the decision of the first respondent, Therefore, the first
respondent usurped powers he did not have when he directed for the removal of
the appellant from the public service. Had he had any reason to believe that the
appellant had committed any offence, he should have reported the same to the
relevant authority for necessary action.
From the foregoing, we are of the settled view that, the first respondent exceeded
his powers and had no jurisdiction to order for the removal of the appellant from
public service.
With regard to the third ground, the appellant’s complaint is that, he was
discriminated when his request for leave without pay was refused, while that of
Yahaya Msulwa, his fellow employee was granted. On our part, we are in
agreement with the High Court judge that, there are no material facts concerning
the said Yahaya Msulwa who was allegedly granted leave without pay for us to
compare with the appellanrs application. As such, the first respondent's replies
206
to the appellant’s requests in respect of leave without pay contain nothing with
regard to the said Yahaya Msulwa. We must therefore emphasize that; each
situation must be decided on its own merit. In the event, this ground too is
unmerited.
Lastly, in the fourth ground, what we can say about the appellant's complaint in
relation to the refusal by the first respondent to grant him leave without pay is
that, leave is granted at the discretion of the first respondent. Pursuant to section
H.19 of the Standing Orders we cited earlier, it is not a public policy to grant
leave without pay to employees. However, the first respondent is given
discretion to grant that leave upon being satisfied that it is in the public interest
to do so. As rightly decided by the High Court, we have not seen any provision
of law which gives recourse to an employee to go to court to challenge the refusal
of the leave. This ground fails.
Consequently, because the first respondent exceeded his powers when he
ordered for the deregistration of the appellant from the public service, we issue
certiorari to quash the decision of the first respondent embodied in his letter
dated 16/3/2017. However, in the circumstances, we refrain to grant the
prerogative orders of prohibition and mandamus which were prayed for by the
appellant, but we order proper procedure to be followed by the relevant authority
to determine the fate of employment of the appellant. Finally, this appeal is
allowed to the extent shown above with no order as to costs.
FELICIAN RUTWAZA v. WORLD VISION TANZANIA

AT BUKOBA
(MUGASHA, MWANDAMBO, and KITUSI, JJA)
Bukoba, Wambura J., dated 23rd February 2018 in Labour Revision No. 1 of
2018)
207
Limitation period – Grant of leave by the High Court to refile an application for
revision which was struck out two times - Whether application was time barred
and whether the court properly exercised its discretion.
Termination of employment – Appellant alleged to have engaged in politics and
committed acts of gross dishonesty contrary to the employment manual –
Whether appellant’s termination was substantively and procedurally fair
Confidentiality - High Court relies on statements made during mediation as a
basis for its decision holding that there was proof that the appellant had engaged
himself in politics in contravention of the employment manual – Whether it was
irregular for the court to rely on mediation proceedings
Reliefs – Whether it was proper for the CMA to grant 12 months' salaries
compensation in a case where the respondent had valid reason for terminating
the appellant and at the same time grant payment of salaries for the unexpired
term of a fixed term contract.
Reliefs – Appellant claims an assortment of reliefs – compensation for the
unexpired term of the contract, subsistence allowance – Whether appellant was
entitled to the reliefs and at which rate.
The appellant was an employee of the respondent. He had a two years

employment contract running from 1st September 2014 through 31st August
2016. Almost halfway its duration, the respondent terminated the contract on
account of alleged misconduct on the part of the appellant citing two grounds
namely; involvement in politics and gross dishonesty for an alleged submission
of fake academic certificates. The appellant successfully challenged the
termination for being unfair both on substantive and procedural grounds in the
CMA which ordered compensation and reinstatement of the appellant. Having
sustained the claim, the CMA also awarded the appellant an assortment of reliefs
ranging from compensation, salaries for the unexpired term of the contract and
subsistence allowance all amounting to TZS 126,030,000/=.
Aggrieved, the respondent challenged the award made by the CMA by way of
revision before the High Court. To a large extent, the High Court quashed the
impugned award. It made a substantial interference thereon particularly on
compensation, salaries for the unexpired term and subsistence allowance.
Naturally, the order did not amuse the appellant and hence the instant appeal.
Held: (i) The High Court was right in exercising its discretion granting leave to
refile a proper application. The Court acted consistent with Rule 3 (1) and 55(1)
208
of the Labour Court Rules, 2007 G.N. No. 106 of 2007 (the Rules) made under
section 55 (1) of the Labour Institutions Act, [Cap. 300 R.E.2019]. Better still,
rule 55(2) of G.N. No. 106 enjoins the Labour Court to act in a manner it
considers expedient in the circumstances with a view to achieving the objects of
the Act and, or the good ends of justice.
(ii) The respondent had valid and fair reasons for terminating the appellant's
contract for gross misconduct by reason of his involvement in politics in
contravention of the employment manual and for gross dishonesty.
(iii) Ordinarily, the proceedings of the abortive mediation ought not to have been
made part of the record before the High Court and so any reference to it was
improper.
(iv) Where the reasons for the appellant's termination were valid and fair, the
Judge was right in exercising her discretion ordering lesser compensation than
that awarded by the CMA. It is not mandatory that in all cases of unfair
termination, the arbitrator should order compensation of not less than 12 months'
remuneration.
(v) A person in breach of the employment manual could not benefit from his
wrong doing. At any rate, payment of compensation for the unexpired term of
the contract was but a double payment considering that the appellant was
awarded compensation for unfair termination. Additionally, such payment is not
one of the remedies for unfair termination under section 40 (1) of ELRA.
(v) The issue regarding the rate of subsistence allowance pending repatriation
has long been settled, that is to say; it is calculated on the daily salary of a
terminated employee paid on a monthly basis.
Cases referred
(1) Attorney General v. Ahmed Yakuti, Civil Appeal No. 49 of 2004;
(2) Paul Yustus Nchia v. National Executive Secretary, Chama Cha
Mapinduzi & Another, Civil Appeal No. 85 of 2005;
(3) Attorney General & 2 Others v. Eliud Massawe & 104 Others, Civil
209
(4) Juma Akida Seuchango v. SBC (Tanzania) Limited, Civil Appeal No. 7
of 2019; and
(5) Sodetra (SPRL) Ltd v. Njelu Mezza & Another, Labour Revision No. 207
of 2008.

(1) Rule 3 (1) of the Labour Court Rules, 2007 G.N. No. 106 of 2007;
(2) Rule 55(1) of the Labour Court Rules, 2007 G.N. No. 106 of 2007;
G. N. No. 64 of 2007
(4) Section 55 (1) of the Labour Institutions Act, [Cap. 300 R.E.2019];
Mr. Mkumbukwa, for Respondent

2nd February, 2021
MWANDAMBO, J.A.: Felician Rutwaza, the appellant herein, is before the

Court faulting the decision of the High Court (Labour Division) sitting at Bukoba
which quashed the award of the Commission for Mediation and Arbitration (the
CMA) it made partly in his favour in a labour dispute against unfair termination.
Briefly, the appellant was an employee of the respondent. He had a two years
employment contract running from 1st September 2014 through 31st August
2016. Almost halfway its duration, the respondent terminated the contract vide
letter dated 29th September 2015 (exhibit P10) on account of alleged misconduct
on the part of the appellant citing two grounds namely; involvement in politics
and gross dishonesty for an alleged submission of fake academic certificates.
However, the appellant successfully challenged the termination for being unfair
210
both on substantive and procedural grounds. Through CMA form No. 1, the
appellant asked the CMA to award him compensation and an order for
reinstatement into employment.
The CMA found no satisfactory evidence of misconduct on the part of the
appellant to warrant termination on any of the grounds cited by the respondent.
Besides, the CMA found the respondent guilty of flouting the procedure in
terminating the appellant without affording him the right to be heard. Having
sustained the claim, the CMA awarded the appellant an assortment of reliefs
ranging from compensation, salaries for the unexpired term of the contract and
subsistence allowance all amounting to TZS 126,030,000/=.
Aggrieved, the respondent challenged the award made by the CMA by way of
revision before the High Court. To a large extent, the High Court (Wambura, J.)
quashed the impugned award particularly on the findings in relation to the
substantive unfairness of the appellant's termination holding that there was
sufficient evidence proving that the appellant had engaged in politics thereby
breaching the employment manual (exhibit D2). Likewise, the High Court
sustained the respondent1s complaint on the appellant's gross dishonesty
manifested by presentation of fake academic certificates. However, that court
concurred with the CMA that the respondent breached the rules of natural justice
by terminating the appellant without affording him the opportunity to be heard.
Put it differently the High Court found the appellant's termination on substantive
ground as fair but unfair on procedural grounds. Ipso facto, the lower court's
holding on the fairness of appellant's termination on substantive grounds had a
bearing on the reliefs the CMA awarded in his favour. It made a substantial
interference thereon particularly on compensation, salaries for the unexpired
term and subsistence allowance.
The High Court faulted the CMA for awarding 12 months' salaries compensation
in a case where the respondent had valid reason for terminating the appellant. It
thus reduced it to 3 months' salaries. In the same vein, the learned High Court
Judge found no legal justification for condemning the respondent to pay the
appellant for unexpired term of his contract parallel with compensation holding
that it was contrary to the spirit of section 40 (2) of the Employment and Labour
Relations Act, [Cap. 366 R.E 2019] ("the ELRA) The High Court concurred
with the CMA that the appellant was entitled to payment of subsistence
allowance from the date of the impugned termination to 4th April 2016 when the
respondent paid him repatriation expenses. However, it took the view that the
211
appellant was entitled to subsistence allowance equivalent to his daily salary as
against per diem which had been ordered by the CMA. It thus ordered payment
of TZS 4,864,794/= as subsistence allowance for six months during which the
appellant awaited payment for his repatriation.
In sum, the High Court ordered the respondent to pay the appellant TZS
7,294,794/= on top of what he had already been paid. Naturally, the order did
not amuse the appellant and hence the instant appeal predicated on four grounds.
Ground three is dedicated to an issue of law and so we prefer to dispose it ahead
of the rest. The appellant faults the High Court for granting leave to the
respondent leading to the filing of Labour Revision No. 1 of 2018 contrary to
the law. During the hearing, the appellant who appeared in person,
unrepresented, contended that the High Court improperly granted leave to the
respondent to file Labour Revision No. 1 of 2018 which was already time barred.
He impressed upon us that the High Court should have dismissed the application
before it for being time barred.
Mr. Nuhu Mkumbukwa, learned advocate appeared for the respondent. He urged
us to dismiss this ground for being baseless. We respectfully endorse his
submission to which the appellant had nothing in rebuttal. It is trite that section
91(1) (a) of the ELRA sets time limit of six (6) weeks for applying for revision
from the award of the CMA. The record shows (at page 135), that the CMA
handed down its award on July 2016. The respondent filed her revision (No. 9
of 2016) on 27th July 2016 well within six weeks from the date of the award.
However, due to some technical defects, the High Court struck out that
application on 9th November 2017 with an order for filing a fresh one within
fourteen (14) days to which the respondent complied on 13th November 2017
vide Labour Revision No. 8 of 2017. By reason of the failure by the respondent
to attach a copy of the order granting leave to refile that application, the High
Court found it wanting at the instance of the appellant. Yet again, it ordered the
respondent to refile a proper application which she did on 18th January 2018 vide
Labour Revision No. 1 of 2018.
In view of the foregoing, we find no basis in the appellant's argument that the
application in Labour Revision No. 1 of 2018 the subject of this appeal was time
barred for the alleged improper grant of leave to refile it after the High Court had
struck out the previous application.
212
As rightly submitted by Mr. Mkumbukwa, the Labour Division of the High
Court was right in exercising its discretion granting leave to refile a proper
application. In our view, that Court acted consistent with Rule 3 (1) and 55(1) of
the Labour Court Rules, 2007 G.N. No. 106 of 2007 (the Rules) made under
section 55 (1) of the Labour Institutions Act, [Cap. 300 R.E.2019]. The former
rule provides that the Labour Court shall be a court of equity whilst the latter
empowers it to adopt any appointed procedure for any matter not provided for.
Better still, rule 55(2) of G.N. No. 106 enjoins the Labour Court to act in a
manner it considers expedient in the circumstances with a view to achieving the
objects of the Act and, or the good ends of justice. There is no complaint that the
High Court acted inconsistent with the objects of the Act neither is there any
suggestion that it acted for any purpose other than meeting the good ends of
justice. Neither is there any indication that the High Court exercised its discretion
injudiciously. In the upshot, we dismiss ground three for lack of merit, which
takes us to ground one.
The appellant's complaint in ground one is that the High Court erred in holding
that the respondent proved that there were fair and valid reasons for his
termination from employment. It is the appellant's further complaint that the
respondent terminated his contract on the basis of suspicions and doubts it had.
Apparently, he focused his attack on the ground involving his engagement in
politics. He had no complaint whatsoever against the other reason for his
termination; gross dishonesty sustained by the High Court.
The appellant's bone of contention was that the respondent failed to discharge its
burden of proving that he had engaged himself in politics in the course of
employment. On the contrary, the appellant argued that he contested for
councillorship after his termination from employment and not before. The
appellant faulted the learned Judge of the High Court for relying on statements
made during mediation as a basis for her decision holding as she did that there
was proof that the appellant had engaged himself in politics in contravention of
the employment manual.
Mr. Mkumbukwa argued in reply that contrary to the appellant, the termination,
vide letter dated 29th September 2015, was a result of his engagement into
politics by contesting as a councilor. The learned advocate invited us to accept
that since the councillorship was an elective post entailing a long process before
he was nominated by his party and eventually appointed by the electoral body,
213
it could not have been possible for him to have been nominated and appointed
after his termination from employment. He thus urged us to dismiss this ground.
The appellant submitted in rejoinder that the duty to prove that he engaged in
politics during employment was on the respondent which she failed to discharge.
Our starting point in determining this ground is exhibit D2 which lists down
serious offences which can justify termination. One of such offences is
involvement in political activities which may interfere with work or interests of
the respondent. It was common ground that the appellant contested for
councillorship through Chama Cha Mapinduzi during the 2015 general elections
and was elected as such. The only dispute was whether the appellant's
involvement in political activities began after his termination from employment
on 29th September 2015. The appellant was adamant that he was appointed to
contest for councillorship post and started his campaigns on 16th October 2015.
The CMA accepted that proposition which was not shared by the High Court.
Relying on the proceedings during mediation forming part of the record in the
revision and this appeal, the High Court was satisfied that the appellant had
admitted his involvement in politics as early as pt July 2015 and got appointed
by the National Electoral Commission on 1st August 2015 to contest for Ikondo
ward, Muleba District as shown at page 26 of the record. It thus held that there
was a fair and valid reason justifying the appellant's termination. The appellant
invited us to hold that that was irregular because the. The appellant faulted the
learned Judge of the High Court for relying on statements made during mediation
as a basis for her decision holding as she did that there was proof that the
appellant had engaged himself in politics in contravention of the employment
manual. We have no doubt that the appellant had in mind rule 17(1) of the Labour
Institutions (Mediation and Arbitration) Rules, G. N. No. 64 of 2007. That rule
bars any person from referring to anything said during mediation at any
subsequent proceedings unless parties agree in writing. To that extent the
appellant is right. Ordinarily, the proceedings of the abortive mediation ought
not to have been made part of the record before the High Court and so any
reference to it was, with respect, improper. Be it as it may, we think the outcome
would have been similar independent of the appellant's admission during
mediation.
We say so considering the submissions made by Mr. Mkumbukwa to the
effect that the appellant1s election as a councilor entailed a long process of intra
party nominations, appointment by the electoral commission, campaigning and
214
election. We are aware and indeed we take judicial notice of the election process
in our country under the relevant laws. In our view, it could not have been
practically possible for the appellant to have started involving in politics
immediately after his termination and complete the process of nomination and
appointment as a contestant for councillorship in just two weeks. The learned
High Court Judge had similar misgivings and we think she was justified.
At any rate, had we sustained the appellant's complaint and agreed with him that
there was no evidence of him involving himself in politics, he would still have
another hurdle to surmount in assailing the decision of the High Court on the
fairness of the termination. We alluded earlier that the High Court sustained the
respondent's reasons for termination not only on the appellant's involvement in
politic but also on gross dishonesty. The appellant did not challenge that finding
in this appeal; it remains intact. In the event, like the learned High Court Judge,
we are satisfied that the respondent had valid and fair reasons for terminating the
appellant's contract for gross misconduct by reason of his involvement in politics
in contravention of the employment manual and for gross dishonesty. It will now
be plain that the respondent terminated the appellant’s contract on the basis of
gross misconduct which the High Court found proved on the required standard
and not on any degree of suspicions or doubts as contended by him. In the upshot,
we dismiss ground one for being bereft of merit.
In ground two the appellant faults the High Court for quashing the CMA award
and substituting reliefs which lacked legal backing. The appellant1s main
contentions were on the items the High Court disallowed as part of his reliefs
after his impugned judgment namely; payment of one month's salary in lieu of
notice, leave entitlement, subsistence allowance pegged on TZS 120,000.00 per
day from the date of termination to the date when he was repatriated to his place
of recruitment. Similarly, he faulted the High Court for quashing the award on
the underpayment in repatriation expenses from the place of work; Katerero
ADP to his place of recruitment. The appellant was adamant that he was entitled
to all those reliefs which the CMA found to be lawfully due to him but the High
court disallowed them. With particular emphasis and undeniably not surprising,
the appellant argued forcefully that there was no basis for denying him
subsistence allowance pegged on per diem of TZS 120,000.00 he used to get
whilst outside duty station for which there was no dispute. He criticized the High
Court for relying on the Employment and Labour Relations (General)
Regulations, 2017 which were not in force on the date of his termination as a
basis of determining the subsistence allowance payable to him.
215
Mr. Mkumbukwa combined his submissions in ground 2 and 4 understandably
so because they are interrelated. For ease of reference, ground 4 the appellant
faulted the High Court for not awarding him a minimum amount of
compensation provided by the law. For a start, the learned advocate had no
serious contest on the appellant's entitlement to payment of one month's salary
in lieu of notice. He was likewise man enough to concede that the cutoff point
for the purpose of computation of subsistence allowance was 4th April 2016 the
date on which the appellant acknowledged payment of repatriation costs. The
learned advocate had serious contest on the rest of the items including underpaid
repatriation costs, quantum of subsistence allowance and salaries for the
unexpired term of contract.
With regard to the subsistence allowance, the learned advocate argued that the
High Court rightly disturbed the award by CMA for being legally misconceived.
Whilst conceding that at the time of the labour dispute there was no specific legal
provision prescribing the rate of subsistence allowance to an ex-employee
awaiting repatriation, this Court had already provided an interpretation of the
subsistence allowance as evident from decided cases particularly; Attorney
General v. Ahmed Yakuti, Civil Appeal No. 49 of 2004, Paul Yustus Nchia v.
National Executive Secretary, Chama Cha Mapinduzi & Another, Civil Appeal
No. 85 of 2005, Attorney General & 2 Others v. Eliud Massawe & 104 Others,
Civil Appeal No. 82 of 2002 and Juma Akida Seuchango v. SBC (Tanzania)
Limited, Civil Appeal No. 7 of 2019 (all unreported).
As to payment of salaries for the unexpired term, Mr. Mkumbukwa was
emphatic that this was not only un-pleaded but also it amounted to double
payment considering that the appellant was paid compensation for unfair
termination. He also argued that apart from the fact that payment for the
unexpired term is not backed by law, there is no guarantee that the appellant
would have worked up to the end of his contract. In relation to compensation,
the learned advocate submitted that the High Court was right in reducing the
amount from 12 months' salaries to 3 months considering that the termination
was found to be fair on substantive grounds. Counsel argued that the learned
Judge had discretion to do so on the strength of section 40 (1) of EALR read
together with the Employment and Labour Relations (Mediation and
Arbitration) Guidelines, 2007. He sought reliance from Sodetra (SPRL) Ltd v.
Njelu Mezza & Another, Labour Revision No. 207 of 2008 (unreported) in
support of lesser compensation where the unfairness of termination is on
216
procedural ground only and vice versa. The learned advocate implored the Court
to dismiss both grounds for being destitute of merit.
The appellant directed his argument in rejoinder on subsistence allowance and
entitlement to a balance on repatriation costs. He had two arguments in relation
to subsistence allowance. One, existence of evidence that he used to get TZS
120,000.00 per day as outstation subsistence allowance. Two, there was no
dispute on the payment and no challenge was made against it. He distinguished
the application of Paul Yustus Nchia's case (supra) to the instant appeal. With
regards to repatriation, the appellant joined issue with the respondent's learned
advocate on the amount payable arguing that he was terminated at Katerero and
so computation of his repatriation expenses should have been made from that
place to his place of recruitment which was not the case.
Having heard the competing arguments from both the appellant and the
respondent's learned advocate we shall now discuss the key aspects in dispute.
We find it convenient to start with the complaint on compensation which was
the appellant's bone of contention in ground 4. The learned Judge discussed the
remedies flowing from unfair termination in the light of section 40 (1) (c) of the
ELRA and held (at page 225 of the record) that it is not mandatory that in all
cases of unfair termination, the arbitrator should order compensation of not less
than 12 months' remuneration. In the context of the case in which the unfairness
of the termination was on procedure only, guided by some decisions of that court,
the learned Judge reduced compensation from 12 to 3 months. With respect, we
agree with her entirely. In Sodetra (SPRL) Ltd v. Mezza & Another (supra)
referred to by Mr. Mkumbukwa, the High Court (Rweyemamu, J.) interpreted
section 40 (1) (c) thus:
...a reading of other sections of the Act gives a distinct
impression that the law abhors substantive unfairness more
than procedural unfairness, the remedy for the former attracts a
heavier penalty than the latter... (at page 10)
We respectfully subscribe to the above interpretation, for we think it is founded
on logic and common sense; it reflects a correct interpretation of the law. Under
the circumstances, since the learned Judge found the reasons for the appellant's
termination were valid and fair, she was right in exercising her discretion
ordering lesser compensation than that awarded by the CMA. We sustain that
award.
217
Next we shall deal with the issue of payment for the unexpired term of contract.
The learned High Court Judge rejected it on the ground that the appellant could
not serve two masters at the same time. During the hearing, the appellant
impressed upon us that councillorship was not a paid job and so, if we understood
him correctly, he was not serving two masters in exchange of remuneration. Be
it as it may, we share similar views with the High Court that a person in breach
of the employment manual could not benefit from his wrongdoing. At any rate,
as rightly submitted by the learned advocate for the respondent, such was but a
double payment considering that the appellant was awarded compensation for
unfair termination. Additionally, such payment is not one of the remedies for
unfair termination under section 40 (1) of ELRA.
Another hotly contested relief was subsistence allowance. Mr. Mkumbukwa
conceded that the appellant was entitled to payment of subsistence allowance for
the period he waited to be repatriated to his place of recruitment. He also
conceded that the cut-off point was the date on which the appellant was paid his
repatriation costs. The appellant burnt a lot of energy impressing upon us that
the rate of subsistence allowance must be computed from the out of station
allowance he used to get; TZS 120,000.00 per day.
Guided by the authorities some of which were relied upon by the learned Judge
in her judgment and others cited to us by Mr. Mkumbukwa, we find no reason
to fault the award of subsistence allowance for the period the appellant waited to
be repatriated to his place of recruitment pegged on his daily salary. From the
cases placed before us particularly; Attorney General v. Ahmed Yakuti & 2
Others (supra), the issue regarding the rate of subsistence allowance pending
repatriation has long been settled, that is to say; it is calculated on the daily salary
of a terminated employee paid on a monthly basis. It evident from our
reading of Juma Akida Seuchago v. SBC (Tanzania) Limited (supra), that the
issue on the rate of subsistence allowance had been settled and the learned Judge
was right in quashing the amount awarded by the CMA and substituting it with
a rate pegged on daily salary payable on monthly basis for the whole period the
appellant awaited payment of repatriation expenses.
Next we discuss the reliefs in relation to repatriation, leave and payment in lieu
of notice. Happily, Mr. Mkumbukwa conceded that there was no evidence that
the appellant had been paid his leave for the year 2015. He also conceded that
he was entitled to payment of one month's salary in lieu of notice. Without any
218
ado, those remedies flow from any unfair termination of an employment
contract. We allow those reliefs in favour of the appellant.
Regarding repatriation, the record shows (at page 35) that after the termination,
the respondent paid the appellant a sum of TZS 236,000.00 for repatriation from
Katerero ADP to Muleba. The appellant admitted having seen in his bank
account that amount on 4th April 2016 although, according to him, he was not
sure what it was meant to cover. In the end, he agreed that the sum was meant
for his repatriation. Despite the above, the appellant came up with another
version during hearing contending that the payment fell short of the amount he
was actually entitled to. We think we need not unduly belabour on this, for we
are satisfied that the claim is neither here nor there. The learned High Court
Judge rightly rejected that there was under payment on this item and we find no
reason to fault her. In the light of the foregoing, the appeal stands dismissed in
grounds 1, 3 and 4 and partly allowed in ground 2 to the extent indicated.
FILON FELICIAN KWESIGA v. BOARD OF TRUSTEES OF

NSSF
AT BUKOBA
(MWAMBEGELE, KEREFU, and KENTE, JJA.)
(Appeal from the decision of the High Court of Tanzania Labour Division at
Bukoba, Masoud, J. dated the 10th December, 2019 in Misc. Labour
Application No. 6 of 2017)
Limitation period - the impugned decision sought to be challenged was delivered

on 10th December, 2019, the notice of appeal was lodged on 7th January, 2020
and the memorandum of appeal was lodged on 10th March, 2020 - Whether the
appeal was time barred - Rule 90 (1) of the Tanzania Court of Appeal Rules,
2009
Procedural requirement – Appellant did not serve the letter requesting for copies
of the certified documents on the Respondent or the Registrar - Letter not
219
included in the record of appeal – Whether appeal was competent before the
Court and whether appellant can benefit from the exception under the proviso
to Rule 90 (1) of the Tanzania Court of Appeal Rules, 2009
Certificate of delay - Certificate of delay wrongly excluded the number of days -
Was not served on the respondent as required by the Rules - Certificate issued
without providing the appellant with a copy of the proceedings – Whether the
certificate was ineffective and whether it is curable under the overriding
objective principle.
The High Court of Tanzania sitting at Bukoba, dismissed the applicant's

application seeking extension of time to lodge an application for revision against
the decision of the Commission for Mediation and Arbitration delivered on 24th
June, 2013. That decision of the High Court was delivered on 10th June, 2019.
Aggrieved, the appellant on 7th January, 2020 lodged a notice of appeal in this
Court and on 10th March, 2020, he lodged a memorandum of appeal which
comprised two (2) grounds of complaint. Having been served with the
memorandum of appeal, the respondent lodged a notice of preliminary objection.
At the hearing the respondent argued only one point of the preliminary objection.
Held: (i) Under Rule 90 (1) and (3) of the Court of Appeal Rules, 2009 , an
appeal is mandatorily required to be instituted within sixty days from the date
when the notice of appeal was lodged and in order for the appellant to benefit
from the exclusion of time spent in preparation and delivery of documents, he
must apply for certified copy of the proceedings in the High Court within thirty
(30) days of the date of the decision against which it is desired to appeal and the
application for the copy of proceedings must be in writing and a copy of it must
have been served on the respondent.
(ii) Where the appellant concedes that he did not serve the purported letter to the
respondent he cannot benefit from the exception under the proviso to Rule 90
(1) of the Rules. The appeal becomes time barred.
(iii) Where the Registrar issues a certificate of delay without providing the
appellant with a copy of the proceedings such a certificate is pre-mature, hence
ineffective.
(iv) An appeal, cannot be cured by the principle of overriding objective as the
same cannot be blindly applied on such an omission which goes to the root of
the appeal. The overriding objective principle cannot be applied blindly against
the mandatory provisions of the procedural law which goes to the very
foundation of the case
220
(v) The Court cannot have jurisdiction to entertain an appeal which is time barred
and where the certificate of delay is ineffective for having been issued
prematurely.
Appeal struck out

Cases referred to
(1) Victoria Mbowe v. Christopher Shafurael Mbowe and Another, Civil
(2) Khantibhai M. Patel v. Dahyabhai F. Minstry [2003] TLR 437;
(3) Yazidi Kassim t/a Yazidi Auto Electric Repairs v. The Hon. Attorney
General, Civil Appeal No. 215 of 2017;
(4) Andrew Mseul and 5 Others v. The National Ranching Company Ltd
and Another, Civil Appeal No. 205 of 2016;
(5) Njake Enterprises Limited v. Blue Rock Limited and Another,
(6) Mondorosi Village Council and 2 Others v. Tanzania Breweries Limited
& 4 Others, Civil Appeal No. 66 of 2017.
(1) Rule 90 (1) and (3) of the Court of Appeal Rules, 2009
Mr. Nyoni, Principal State Attorney, and Mr Sanga, Senior State Attorney, for
Respondent
RULING OF THE COURT

27th August, 2021
KEREFU, J.A.: The High Court of Tanzania (Masoud, J) sitting at Bukoba,

dismissed the applicant's Misc. Labour Application No. 6 of 2017 seeking
extension of time to lodge an application for revision against the decision of the
Commission for Mediation and Arbitration delivered on 24th June, 2013. That
221
decision of the High Court was delivered on 10th December, 2019. Aggrieved,
the appellant on 7th January, 2020 lodged a notice of appeal in this Court and on
10th March, 2020, he lodged a memorandum of appeal which comprised two (2)
grounds of complaint. However, for the reasons which will be apparent shortly,
we do not deem appropriate, for the purpose of this ruling, to reproduce them
herein.
Having been served with the memorandum of appeal, the respondent lodged a
notice of preliminary objection to the effect that:
(1) The appeal is time barred and thus offending the mandatory
provisions of Rule 90 (1) and (3) of the Tanzania Court of
Appeal Rules, 2009 as amended that-
(a) The memorandum and record of appeal were lodged on
10th March, 2020 being after the period of 63 days from
the date of lodging the notice of appeal, which was on
7th January, 2020;
(b) The purported written letter requesting for the copy of
proceedings in the High Court was lodged on 9th
January, 2020 but was neither copied nor served to the
respondent and it is not part of the record;
(c) The certificate of delay is incorrect improper and
erroneously certified rendering it being non- existing
before the eyes of the law hence the appeal is time
barred.
(2) The appeal is untenable in law the applicant's failure to serve
the notice of appeal to the respondent within 14 days.
At the hearing of the appeal, the appellant appeared in person without legal
representation whereas the respondent was represented by Mr. Deodatus Nyoni,
learned Principal State Attorney assisted by Mr. Ayoub Sanga, learned State
Attorney.
As is the rule of practice, before we could embark on the hearing of the appeal
on merit, we have to hear first the preliminary objection. As such, we invited the
parties to address us on the points of objection raised by the respondent.
Upon taking the floor, Mr. Nyoni abandoned the second point of objection and
went on to argue only the first point.
222
On our part, having examined the record of appeal and the submissions advanced
by the parties for and against the preliminary objection, the main issue for our
determination is whether the objection raised is meritorious. There is no doubt
that the issue raised is regulated by Rule 90 (1) and (3) of the Rules which
categorically states as follows:
90 (1) Subject to the provisions of rule 128, an appeal shall be
instituted by lodging in the appropriate registry within sixty
days of the date when the notice of appeal was lodged with -
(a) a memorandum of appeal in quintuplicate;
(b) the record of appeal in quintuplicate;
(c) security for the costs of the appeal;
save that where an application for a copy of the proceedings in the High Court
has been made within thirty days of the date of the decision against which it is
desired to appeal, there shall, in computing the time within which the appeal is
to be instituted be excluded such time as may be certified by the Registrar of
the High Court as having been required for the preparation and delivery of that
copy to the appellant.
(3) An appellant shall not be entitled to rely on the exception
to sub-rule (1) unless his application for the copy was in
writing and a copy of it served on the respondent.
From the above cited provisions, some points emerge. One, an appeal is
mandatorily required to be instituted within sixty days from the date when the
notice of appeal was lodged. Two, in order for the appellant to benefit from the
exclusion of time spent in preparation and delivery of documents, he must apply
for certified copy of the proceedings in the High Court within thirty (30) days of
the date of the decision against which it is desired to appeal and the application
for the copy of proceedings must be in writing and a copy of it must have been
served on the respondent.
In the instant appeal, it is on record that the decision sought to be challenged was
handed down on 10th December, 2019, the notice of appeal was lodged on 7th
January, 2020 and the memorandum of appeal lodged on 10th March, 2020. With
respect, we find the submission of the appellant that he lodged the appeal on 5th
March, 2020 to be misconceived as it is not supported by the record.
223
It is also clear that, the record is silent on when exactly the appellant requested
to be supplied with the certified copies of the High Court's documents as the
applicant's letter to that effect, though referred in the certificate of delay, is not
included in the record. It is equally not clear as to when the said documents were
ready for collection and when exactly the appellant was availed with the same,
as again, the Registrar's letter to that effect is not part of the record.
As correctly argued by Mr. Nyoni, pursuant to Rule 90(1) of the Rules, the
appeal ought to have been lodged within sixty (60) days of the filling of the
notice of appeal. This is so, because, in his submission, the appellant had readily
conceded that he did not serve the letter requesting for the certified documents
to the respondent. As such, he is not entitled to benefit from the exclusion of
days envisaged under the proviso to Rule 90 (1) of the Rules. In the case of
Victoria Mbowe v. Christopher Shafurael Mbowe and Another, Civil Appeal
No. 115 of 2012 (unreported), when this Court was confronted with an akin
situation, it stated as follows:
... We have found nothing in the record showing or suggesting

that the appellant ever applied for the copy of the proceedings
within the time and in a manner provided under Rule 90 (1) of
the Rules. Similarly, Rule 90 (2) [Now 90 (3)] lays it down
that an appellant cannot rely on the exception clause in Rule
90 (1) unless his application for a copy is in writing and served
on the respondent. Again, there is nothing in the record upon
which compliance with the provisions of the said Rule 90 (2)
of the Rules could be ascertained.
In finding that the appeal in question was time barred in the absence of the letter
requesting for the copy of certified documents, the Court went on to state that:
As matters stand, we are in agreement with Mr. Muganyizi that
in the absence of a letter applying for the copy of proceedings,
the appellant was supposed to institute her appeal within sixty
(60) days reckoned from 7/12/2010 when she lodged her notice
of appeal. Thus, we are settled in our mind that the present
purported appeal which was instituted on 11/12/2012 In
violation of Rule 90 (1) of the Rules is, unarguably, time barred.
224
Similarly, in this case, since the appellant has conceded that he did not serve the
purported letter to the respondent he cannot benefit from the exception under the
proviso to Rule 90 (1) of the Rules. Therefore, we agree with the counsel for the
respondent that the appeal is time barred.
As regards the validity of the certificate of delay, there are several decisions of
this Court on that aspect; they include, Khantibhai M. Patel v. Dahyabhai F.
Minstry [2003] TLR 437; Yazidi Kassim t/a Yazidi Auto Electric Repairs v. The
Hon. Attorney General, Civil Appeal No. 215 of 2017, quoting with approval
the case of Andrew Mseul and 5 Others v. The National Ranching Company Ltd
and Another, Civil Appeal No. 205 of 2016 (all unreported), to mention, but a
few. Specifically, in Khantibhai M. Patel (supra) this Court held inter alia that:
A proper certificate under rule 83(1) (now Rule 90 (l) of the
Rules of the Court is one issued after the preparation and
delivery of a copy of the proceedings to the appellant and
the certificate contained in the record of appeal was improper;
it might have been an inadvertent error and no mischief
was involved but the error rendered the certificate invalid.
An error in a certificate is not a technicality which can be
glossed over; it goes to the root of the document. [Emphasis
supplied].
In addition, in Andrew Mseul (supra) the Court observed that:
A valid certificate of delay is one issued after the preparation
and delivery of the requested copy of the proceedings of the
High Court. That necessarily presupposes that the Registrar
would certify and exclude such days from the date when
the proceedings were requested to the day when the same
were delivered. [Emphasis added].
However, and as correctly argued by Mr. Nyoni, in the certificate of delay
herein, the Registrar, instead of excluding days used to prepare the documents,
he indicated completely different dates of 9th January, 2020 to 20th August, 2020
and wrongly excluded days which were not subject for exclusion as per Rule 90
(1) of the Rules. For clarity, we find it prudent to reproduce part of the said
certificate of delay hereinbelow:
CERTIFICATE OF DELAY
225
Made under Rule 90 (1) of the Tanzania Court of Appeal
Rules, 2009
I hereby certify that the application for copies of the
proceedings, decree and other documents in respect of the
above-mentioned suit/proceedings was lodged in the High
Court at Bukoba on 9th January, 2020 by the appellant up
to the date of issuance of this certificate of delay the
aforesaid proceedings/ documents applied for were not
supplied in time by the High Court. Therefore, due to this
delay in preparation of the proceedings and those other
documents the entire period from the time of applying the
above-mentioned proceedings/ documents be excluded in
computation of time until on 2dh August, 2020 when all
proceedings will be completed and supplied to the
appellant." [Emphasis added].
Reading the above certificate and following the above authorities, we are in
agreement with the counsel for the respondent that the certificate of delay is
fatally defective for being issued contrary to the requirement of the above Rule.
It is our considered view that, where the Registrar issues a certificate of delay
without providing the appellant with a copy of the proceedings, as the case
herein, then, such a certificate is pre-mature, hence ineffective.
We are of the further view that the circumstances obtained in this appeal, cannot
be cured by the principle of overriding objective as the same cannot be blindly
applied on such an omission which goes to the root of the appeal. The Court
cannot have jurisdiction to entertain an appeal which is time barred and where
the certificate of delay is ineffective for having been issued prematurely. See the
cases of Njake Enterprises Limited v. Blue Rock Limited and Another,
Civil Appeal No. 69 of 2017 (unreported) and Mondorosi Village Council and 2
Others v. Tanzania Breweries Limited & 4 Others, Civil Appeal No. 66 of 2017
(unreported) where we categorically stated that, the overriding objective
principle cannot be applied blindly against the mandatory provisions of the
procedural law which goes to the very foundation of the case.
Furthermore, and for the avoidance of doubt, we have refrained from invoking
the provisions of Rule 96 (7) of the Rules, to which we often resort to inject
oxygen to a defective certificate of delay by granting leave to the appellant to
lodge a supplementary record to include a valid certificate of delay in the record.
226
This is so, because, in this case, as indicated above, the appellant is not entitled
to benefit from the exception under the proviso to Rule 90 (1) of the Rules, as he
did not serve, on the respondent, the letter applying for the copy of the certified
documents for appeal purposes. That is the reason why we have found and held
that, in the circumstances, the appeal cannot be resurrected by the principle of
overriding objective.
In the premises, we are of the settled view that the appeal before us is
incompetent for being time barred. In the end, we sustain the preliminary
objection raised by the respondent. Consequently, we strike out the appeal for
being time barred. Considering that this is a labour related matter, we make no
order as to costs.
Appeal struck out
FINCA TANZANIA LTD v. WILDMAN MASIKA & 11 OTHERS

AT IRINGA
(MZIRAY, MKUYE and KITUSI, JJ.A.)
Iringa, Mashaka J., dated 11th April, 2016 in Revision No. 66 of 2015)
Award - CMA award must be given within 30 days after the date of hearing –
Award given four months thereafter – Whether the delay was fatal for violating
the principle of "justice delayed justice denied - Section 88(9) of Employment
and Labour Relation Act 2004.
Strike – Respondents wrote a letter inviting management of the appellant to a
meeting intimating that failure of the appellant to appear on the due date, the
respondents will not attend work – Whether respondents signified engaging in a
strike.
The respondents were employed by the appellant on different dates in different

capacities and posted at Iringa branch where they worked until on 11.6.2015
when their contracts of employment were terminated by the appellant on the
227
ground that they assembled unlawfully. This happened after the respondents had
written a letter dated 16.5.2013 addressed to the Chief Executive Officer (CEO)
of the appellant company inviting him to visit their branch by 20.5.2013 to solve
some labour disputes between them and the management of their branch. This
letter was viewed by the appellant as an arranged unauthorised meeting, aimed
to strike. The consequences which followed was termination of the respondents’
contracts of employment.
Aggrieved the respondents filed a dispute at the Commission for Mediation and
Arbitration (CMA) at Iringa. The dispute was referred for Arbitration and on
21.8.2015 an award was delivered in favour of the respondents. The appellant
was aggrieved with the award and filed a revision application in the High Court,
Labor Division which was determined on 11.4.2016 in favour of the respondents.
Dissatisfied by the High Court's decision, the appellant has brought this appeal.
Held: (i) The delay in delivering the award was not a material irregularity in the
procurement of the award, sufficient to have the same invalidated. If the award
is nullified merely because the decision was not given within thirty days the
effect is to have the process commence a fresh causing further delay which is to
the disadvantage of both parties.
(ii) The spirit of section 88(9) of ELRA is to have a time frame in completing
matters brought before the CMA but failure to meet the deadline stipulated in
section 88(9) will not invalidate the proceedings and the award. The delay of
four months in this case has not prejudiced any party, hence no injustice
occasioned.
(iii) A letter written by the respondents requesting the appellant to appear on
16.5.2013 does not by itself signify a strike.
Appeal dismissed
Cases referred to

(1) Section 88(9) of Employment and Labour Relation Act 2004
228
Mr. Sheikh, for Appellant
Mr. Ngudungi, for Respondent

30th September, 2019
MZIRAY, J.A.: This is an appeal against the judgment and decree of the High
Court of Tanzania (Labour Division) at Iringa in Labour Revision No. 66 of
2015.
The facts in brief upon which the appeal is grounded are as follows: The
respondents were employed by the appellant Financial Institution on different
dates in different capacities and posted at Iringa branch where they worked until
on 11.6.2015 when their contracts of employment were terminated by the
appellant on the ground that they assembled unlawfully. This happened after the
respondents had written a letter dated 16.5.2013 addressed to the Chief
Executive Officer (CEO) of the appellant company inviting him to visit their
branch by 20.5.2013 to solve some labour disputes between them and the
management of their branch. This letter was viewed by the appellant as an
arranged unauthorised meeting, aimed to strike, without exhausting available
company procedures for addressing their grievances. The consequences which
followed was termination of the respondents contracts of employment.
Being discontented with the termination, the respondents filed Dispute No.
CMA/IR/64/3013 at the Commission for Mediation and Arbitration (CMA) at
Iringa. Upon mediation, the dispute was not resolved. Subsequently, the dispute
was referred for Arbitration and on 21.8.2015 an award was delivered in favour
of the respondents. The appellant was aggrieved with the Arbitrator's award and
for that reason, filed application No. 66 of 2015 seeking revision at the High
Court (Labour Division) which was determined on 11.4.2016 in favour of the
respondents. Dissatisfied by the High Court's decision, the appellant has brought
this appeal raising three grounds of complaints as follows;
1. That, the High Court erred in law and facts for holding that
no unauthorised assembly or meeting at the working place
by the respondents without taking account that the appellant
proved on balance of probability.
2. That, the High Court erred in law and facts to hold in favour
of the respondents while the Commission for Mediation and
229
Arbitration had no power to adjudicate the dispute since no
party to the case referred the dispute to arbitration.
3. That, the High Court erred in law and facts for holding in
favour of the respondents while the decision of
Commission for Mediation and Arbitration was delivered
after expiration of 4 months and no reasons were adduced
by the arbitrator for the delay in the decision.
The appeal was heard before us on 13.08.2019 during which the appellant was
represented by Mr. Yusuf Sheikh, learned advocate and Mr. Daniel Ngudungi,
learned advocate appeared representing the respondents.
We have carefully gone through the rival arguments both in support and against
the appeal. In determining the appeal, we shall start with the third ground of
appeal. The law in terms of s.88 (9) of the Employment and Labour relations Act
requires that decisions be given within 30 days after the date of hearing. It is true
that the CMA's decision in this case was delivered after 4 months. However, the
delay in our view is not a material irregularity in procurement of an award,
sufficient to have the same invalidated. We say so because if for example the
award is nullified merely because the decision was not given within thirty days
the effect is to have the process commence afresh causing further delay which is
to the disadvantage of both parties. To us that is not the spirit behind section
88(9). The spirit is to have a time frame in completing matters brought before
the CMA but failure to meet the deadline stipulated in section 88(9) will not
invalidate the proceedings and the award. At any rate, the delay of four months
in this case has not prejudiced any party, hence no injustice occasioned. It is at
this stage we tend to agree with the findings of the High Court on this complaint
of delay. We accordingly dismiss the third ground of appeal.
As to the second ground of appeal, we wish to state briefly that there is no
codified procedure for referring a matter from mediation to arbitration. As the
record reflects, when mediation was marked to have failed, the mediator
recorded what the partied agreed, referring the matter to arbitration and the
parties signed, something suggesting that parties agreed for the dispute to be
referred to the CMA. On that basis, we cannot say that parties did not refer the
dispute to arbitration. As such therefore, the ground is without merit.
With regards to the first ground of appeal, we are of a firm view that a letter
written by the respondents requesting the appellant to appear on 16.5.2013 does
230
not by itself signify a strike. The appellant ought to have given evidence that the
respondents assembled unlawfully, participated in a strike and did not attend
work. In the absence of evidence to prove the same, the termination was unfair
with no backing of the law.
That said and in the light of the above considered substantive matters herein, we
are increasingly of the view that, this appeal was filed without serious and
sufficient grounds of complaints. For that reason, we accordingly dismiss the
appeal in its entirety. This being a labour dispute, we make no order as to costs.
Order accordingly.
Appeal dismissed
FREDY NGODOKI v. SWISSPORT TANZANIA PLC

AT DAR ES SALAAM
(NDIKA, KITUSI, and RUMANYIKA, JJA.)
(Appeal from the decision and order of the High Court of Tanzania, Labour
Division at Dar es Salaam, Wambura. J., dated 25th July, 2019 in Revision Case
No. 726 of 2019)
Burden of proof in labour cases – Appellant alleges both substantive and
procedural unfair termination - High Court's decision only based upon
extraneous matters namely the opening statements, made and lodged by the
respondent – Whether respondent discharged the burden of proof burden –
Section 39 of Employment and Labor Relations Act, [Cap. 366 R.E. 2019].
The appellant was employed by as an aircraft loader on a two years fixed-term
contract. Having been prematurely terminated on 04/11/2015, he instituted an
unfair termination claim in the Commission for Mediation and Arbitration for
Dar es Salaam at Dar es Salaam (the CMA). At the end of it all, the CMA upheld
the claim and awarded him TZS. 6,272,000.00 being sixteen months
remuneration as compensation. The appellant was unsatisfied by the CMA's
231
award. Accordingly, he filed a revision in the High Court, Labor Division. The
High Court was unimpressed. It overturned the award as it was satisfied that the
appellant's termination was substantively and procedurally fair. The appellant
was unhappy with the above outcome, hence the instant appeal.
Held: (i) The Court is aware of the existence of the respondent's opening
statement in the record of appeal, but that one had clearly no evidential value
and could not be acted upon in lieu of testimonial accounts of witnesses or
documentary evidence. The respondent's opening statement remained, but it was
not by way of evidence tested.
(ii) In express terms one having waived his right to be heard, the fact remains
that by no stretch of the imagination did the respondent prove that the reason and
procedure taken for termination of the appellant's employment were fair.
Appeal allowed
Cases referred to
(1) Jimson Security Service v. Joseph Mdegela, Civil Appeal No 152 of 2019:
(2) Severo Mutegeki v. Rehema Mwasandube, Civil Appeal No. 343 of 2019;
and
(3) National Microfinance Bank v. Leila Mringo and 2 Others, Civil Appeal
No. 30 of 2018
(1) Section 39 of Employment and Labor Relations Act, [Cap. 366 R.E.
2019].
Mr. Mashamba, for Appellant

Ms. Kivea, for Respondent

8th March, 2022
232
RUMANYIKA, J.A.: Fredy Ngodoki, the appellant, was employed by
Swissport Tanzania PLC, the respondent, as an aircraft loader on a two years
fixed-term contract. Having been prematurely terminated on 04/11/2015, he
instituted an unfair termination claim in the Commission for Mediation and
Arbitration for Dar es Salaam at Dar es Salaam (the CMA). At the end of it all,
the CMA upheld the claim and awarded him TZS. 6,272,000.00 being sixteen
months remuneration as compensation. However, it turned out that the appellant
was unsatisfied by the CMA's award. Accordingly, he filed a revision in the High
Court, Labor Division demanding remuneration for sixteen months as additional
compensation on top of what was awarded by the CMA. The High Court,
(Wambura, J.) was unimpressed. It overturned the award as it was satisfied that
the appellant's termination was substantively and procedurally fair. For ease of
reference, we extract part of the decision:
…I have herein found that there was a valid reason in
terminating the applicant and that the procedures were
properly adhered to. So, there was a Justification for the
termination.
The appellant is unhappy with the above outcome, hence the instant appeal. In
his memorandum of appeal, the appellant faults the judge on three points; (i) that
actually the termination was unfair (ii) that the judge made the decision only
based on hearsay evidence and (iii) that the judge wrongly denied him
compensation.
When the appeal came up on 14/02/2022 for hearing, Mr. Emmanuel Mashamba,
learned counsel, appeared for the appellant while the respondent had the services
of Ms. Abbriaty Kivea, also learned counsel.
As it stood both in the CMA and the High Court, the issue for our consideration
is whether the appellant's termination was substantively and procedurally fair
whose answer we think will resolve the appellant's three grounds of appeal and
therefore sufficiently dispose of the appeal.
In resolving the above posed issue, we find it both logical to extract the
provisions of s.39 of the ELRA casting the burden of proof in unfair termination
proceedings upon the employer as follows:
S.39-In any proceedings concerning unfair termination of an
employee by an employer, the employer shall prove that the
termination is fair.
233
In order to discharge the burden, the employer must prove that the employee
was terminated for a valid and fair reason and upon a fair procedure. In that
regard s.37 of the ELRA reads as follows:
S. 37-(1) It shall be unlawful for an employer to
terminate the employment of an employee unfairly.
(i) related to the employee's conduce capacity or
compatibility; or
(ii) based on the operational requirements of the
employer and
(c) that the employment was terminated in
accordance with a fair procedure. [ emphasis added].
On different occasions this Court had time to discuss about application of

Section. 37 of the ELRA like it is the case here. See the cases of Jimson Security
Service v. Joseph Mdegela, Civil Appeal No 152 of 2019, Severo Mutegeki v.
Rehema Mwasandube, Civil Appeal No. 343 of 2019 and National Microfinance
Bank v. Leila Mringo and 2 Others, Civil Appeal No. 30 of 2018 (all unreported).
As we said earlier on, before the CMA the respondent led no evidence at all as
clearly shown on the record of appeal. That is where one Mzee Vedasto, the
respondent's representative, prayed for the closure of the respondent's case
without having produced any evidence. That request was made after the
respondent had failed to produce witnesses on three previous occasions that is to
say on 21/11/2016, 17/01/2017 and 02/02/2017. Given the fact that the
respondent led no evidence, on his part the appellant had no burden to discharge
and therefore his unfair termination claim remained unchallenged. We agree
with Mr. Mashamba's submission that the High Court's decision was only based
upon extraneous matters namely the opening statements, made and lodged by
them. With respect therefore, we find Ms Kivea's contrary submissions clearly
misconceived.
It follows, therefore, that given the evidence on record the respondent did not, in
any way whatsoever prove, leave alone attempt to show that the termination was
fair.
234
We are well aware of the existence of the respondent's opening statement at page
28 of the record of appeal, but that one had clearly no evidential value and could
not be acted upon in lieu of testimonial accounts of witnesses or documentary
evidence. The respondent's opening statement remained, but it was not by way
of evidence tested. The respondent may have had some witnesses to prove the
fairness of the impugned termination but it is itself to blame for the course taken
by its representative Mzee Vedasto, closing its case, rather surprisingly without
leading any evidence.
When all is said, with greatest respect we wish to hold further that the learned
judge was incorrect in her decision on three reasons; (1) In express terms one
having waived his right to be heard, the fact remains that by no stretch of the
imagination did the respondent prove that the reason and procedure taken for
termination of the appellant's employment were fair (2) with respect to the
respondent's case the High court's findings had no bearing on the record (3) as
regards the respondent's case, the High Court just relied on assumed and or
extraneous matters or facts.
Now that from the course taken by the respondent we are settled that it did not
even show that the appellant was fairly terminated, it must have risked the
consequences.
In the final analysis, we find merit in the appeal and allow it. Accordingly, we
quash the High Court's decision and set aside the decree. For avoidance of doubt,
we restore the CMA's award with no order as to costs because it is a labour
matter.
Appeal allowed
GASPAR PETER v. MTWARA URBAN WATER SUPPLY

AUTHORITY (MTUWASA)
AT MTWARA
(JUMA, C.J., MWARIJA, and WAMBALI, JJA.)
235
Mtwara, Nyerere, J, dated 6th May, 2016 in Labour Revision Case No. 14 of
2015)
Preliminary objection – Whether the all the points of preliminary objection
raised by the respondent are based on pure points of law.
Repatriation - Appellant issued notice of resignation from his employment -
Notice was accepted - Whether, from the circumstances under which the
appellant's employment was terminated, the provisions of section 43(1) of the
ELRA on repatriation were applicable to him.
Procedural irregularity - Appellant failed to file written submission – Whether
the failure is fatal and whether it rendered the appeal incompetent - Rule 106(1)
of the Court of Appeal Rules, 2009
Record of appeal - Appellant failed to include in the record of appeal pleadings
filed in the CMA, Form No. 1, copy of the proceedings in the CMA and some of
the tendered exhibits – Whether the omission rendered the appeal incompetent -
Rule 96(1) and (2) of the Court of Appeal Rules, 2009.
On 3/9/2012, the appellant entered into a fixed term employment contract with
the respondent. The term of contract was four years with an option to renew upon
giving notice to either party. On 27/3/2014, the appellant issued to the
respondent a notice of resignation from his employment. His notice was accepted
and after its expiration on 1/4/2014, he resigned from employment.
Following his resignation, the appellant claimed for terminal benefits; cost of
transporting him, his family and personal effects to Moshi, the place of his
recruitment. The respondent refused to pay the benefits claimed by the appellant
on account that he did not qualify for such benefits because he decided to resign
before expiration of the fixed term of employment. As a result, he filed a dispute
in the CMA. In its decision, the CMA found that the appellant was entitled to be
paid the claimed benefits as provided under S. 43(1) of the Employment and
Labour Relations Act, [Cap. 366 R.E. 2009] (the ELRA). The respondent was
aggrieved by the decision of the CMA and therefore appealed to the High Court.
The High Court partly upheld the decision of the CMA. The appellant was
aggrieved hence this appeal which was greeted with four points of preliminary
objection.
Held: (i) Having considered the submissions of the parties on the preliminary
objection, the 1st and 3rd grounds are not based on pure points of law. The parties
236
were at issue as to whether or not the documents referred to in the 1st and 3rd
grounds of the preliminary objection were timely served to the respondent. Since
therefore, determination of this issue requires evidence, the two grounds do not
raise pure points of law.
(ii) The effect of a failure to file written submission does not affect the
competence of the appeal. It only deprives the appellant of the opportunity to
apply for additional time for making oral submission.
(iii) Although the appeal was filed before the amendment of Rule 106, guided
by the rules of construction of statutes, the amendment operates
retrospectively.
(iv) As regards the missing documents the omission to include them in the record
is not a fatal irregularity because the grounds of appeal raise issues of law
which can be determined without recourse to those documents.
(v) Upon termination of employment, an employee is entitled to inter alia,
subsistence allowance during the period between termination of his employment
and the date of payment of costs of his transportation to the place of recruitment.
The employee's entitlement to subsistence allowance is not conditional upon his
confinement to the place of his employment pending payment of his
transportation costs.

Cases referred to
(1) Mukisa Biscuit Manufactures Ltd. v. West End Distributors Ltd [1969]
E.A. 696
(2) Makongoro v. Consigilio [2005] EA 247
(3) The Director of Public Prosecutions v. Jackson Sifael Mtares, Criminal
(1) Section 43(1) of the Employment and Labour Relations Act, [Cap. 366
R.E. 2009]
(2) Rule 106(1) of the Court of Appeal Rules, 2009
(3) Rule 96(1) and (2) of the Court of Appeal Rules, 2009.
(4) Rule 84(1) of the Tanzania Court of Appeal Rules, 2009
237
Mr. Mtembwa, for Respondent

28th February, 2019
MWARIJA, J.A.: In this appeal, the appellant, Gaspar Peter challenges the
decision of the High Court of Tanzania (Labour Division) in Labour Revision
No. 14 of 2015. In the revision, the High Court, Nyerere J. (as she then was)
varied the decision of the Commission for Mediation and Arbitration (CMA) in
Labour Dispute No. CMA/MTW/LD/127/2014 dated 19/2/2015, (the Labour
Dispute).
The facts giving rise to the appeal can be briefly stated as follows: On 3/9/2012,
the appellant entered into a fixed term employment contract with the respondent,
the Mtwara Urban Water Supply Authority (MTUWASA). He held the post of
Finance and Administrative Manager. The term of contract was four years with
an option by either party to terminate it upon issuing to the other a three months'
notice. Having worked for one and a half years, on 27/3/2014, the appellant
issued to his employer (the respondent) a notice of resignation from his
employment. His notice was accepted and after its expiration on 1/4/2014, he
resigned from employment.
Following his resignation, the appellant claimed for terminal benefits; cost of
transporting him, his family and personal effects to Moshi, the place of his
recruitment. The respondent refused to pay the benefits claimed by the appellant
on account that he did not qualify for such benefits because he decided to resign
before expiration of the fixed term of employment. As a result, he filed the
Labour Dispute in the CMA.
In its decision, the CMA found that the appellant was entitled to be paid the
claimed benefits as provided under S. 43(1) of the Employment and Labour
Relations Act, [Cap. 366 R.E. 2009] (the ELRA). It ordered the respondent to
pay him as follows:
238
a) TZS 240,000/= being the cost of transport for the
appellant, his wife and two children from Mtwara to
Moshi.
b) TZS 1,177,050.00 being the cost of transporting 3 tons
of his personal effects from Mtwara to Moshi, and
c) TZS 8,466,224.00 as subsistence allowance calculated
in the form of his salary for 8 months (from the date of
resignation to the date of the decision of the CMA).
The respondent was aggrieved by the decision of the CMA and therefore
appealed to the High Court. The appeal was based on the following issues:
(i) Whether the Arbitration Award issued by the
Arbitrator Hon. KWEKA, A.J. on 19th February
2015 bases on substantive and procedural law.
(ii) Whether the Arbitration Award issued by the
Arbitrator Hon. KWE/G4 A.J. on 19th February
2015 is capable of determined (sic) rights that are
enforceable.
(iii) Whether the reliefs given to the Respondents (sic)
in the Arbitration award are legally Justifiable in
law.
(iv) Whether the Arbitrator was correct in facts and law
finding (sic) that the Respondent was entitled to the
awarded costs for transportation and salaries after
resignation.
During the hearing of the appeal in the High Court, the parties' contest was
mainly on whether or not, from the circumstances under which the appellant's
employment was terminated, the provisions of S. 43(1) of the ELRA were
applicable to him. The respondent's case was that, since by his own will, the
appellant decided to resign from employment, he was not covered by the stated
provision of the law. It was argued that the section covers an employee whose
employment has been terminated by his employer or where employment comes
to an end by virtue of expiration of a term of the contract or the law. It was argued
further that the appellant's place of recruitment was Mtwara not Moshi and that
therefore, in any case, he was not entitled to repatriation costs. The respondent
also contested the award of TZS 9,283,274 which included subsistence
239
allowance of TZS 8,466,224.00 contending that the CMA awarded more than
what was claimed by the appellant; that is TZS 6,489,000.00.
On the other hand, the appellant maintained that he was entitled to be paid
terminal benefits because he issued a notice of termination of his employment in
accordance with the contract and the respondent accepted his resignation.
Having considered the parties' submissions, the learned High Court judge held
firstly, that since there was a valid contract of employment between the appellant
and the respondent as evidenced by exhibit Ml, the appellant was covered by S.
43(1) of the ELRA and was therefore, entitled to the terminal benefits specified
in that provision. Secondly, the learned judge found that, for the purpose of
repatriation, the appellant was recruited from Moshi, not at Mtwara as contended
by the respondent.
Despite the above stated findings, although the learned High Court judge upheld
the decision of the CMA awarding the appellant the amount of TZS 1,177,050
as costs of transportation from Mtwara to Moshi, she set aside the award of
subsistence allowance of TZS 8,466,224.00. In so doing, she reasoned as
follows:
In the present case despite the facts that the applicant was
under a legal obligation to repatriate the respondent from
Mtwara to Moshi the evidence available in records does not
reveal that respondent remained on the place of
employment after terminating his employment service with
applicant. Therefore, the arbitrator order of payment of
subsistence allowance was irrational and I quash it.
That part of the decision of the High Court reversing the award of subsistence
allowance aggrieved the appellant hence this appeal which is predicated on two
grounds as follows:
1. That, the learned Honourable Judge erred in law by
entertaining and allowing the respondent to argue on an issue
of substance allowance which was not raised in the grounds of
appeal.
2. That, the learned Honourable Judge erred in law by
finding that the appellant is not entitled to subsistence
allowance.
240
At the hearing of the appeal, the appellant appeared in person, unrepresented
whereas the respondent had the services of Mr. Hussein Mtembwa, learned
counsel. The learned counsel had, by a notice filed on 20/2/2019, raised a
preliminary objection consisting of four grounds as follows:
1. That the appeal is incompetent for failure to serve the
Notice of Appeal in view of Rule 84(1) of the Tanzania
Court of Appeal Rules, 2009.
2. That the Appeal is incompetent for failure to comply with
Rule 96(1) and (2) of the Tanzania Court of Appeal Rules,
2009.
3. That the Appeal is incompetent for failure to serve the
Memorandum and Record of Appeal in view of Rule 97
(1) of the Tanzania Court of Appeal Rules, 2009.
4. That the Appeal is incompetent for failure to comply with
Rule 106 (1) and (7) of Court of Appeal Rules, 2009.
In order to expedite determination of the matter, we proceeded to hear the

objection raised by the respondent's counsel together with the appeal so that, in
case the preliminary objection does not succeed, the appeal will be disposed of.
Having considered the submissions of the parties on the preliminary objection,
we hold the view that the 1st and 3rd grounds are not based on pure points of law.
In the case of Mukisa Biscuit Manufactures Ltd. v. West End Distributors Ltd
[1969] E.A. 696 which has often been cited with approval by the Court, the
nature of a preliminary objection was stated as follows:
4 preliminary objection is in the nature of what used to be a
demurrer. It raises a pure point of law which is argued on
the assumption that all the facts pleaded by the other side
are correct. It cannot be raised if any fact has to be
ascertained or if what is sought is the exercise of Judicial
discretion. [Emphasis added].
In the present case, the parties were at issue as to whether or not the documents
referred to in the 1st and 3rd grounds of the preliminary objection were timely
served to the respondent. Since therefore, determination of this issue requires
evidence, the two grounds do not raise pure points of law.
241
We are also of the considered view that the 4th ground is untenable. After
amendment of the Rules by GN No. 362 of 22/9/2017, a new sub-rule (10) was
introduced in Rule 106 of the Rules. That sub-rule reads as follows:
Failure to file written submission under sub-rule (1) or a reply
under sub-rule (8) shall not be a ground for applying for
additional time for oral submission under the provisions of this
rule.
The effect of a failure to file written submission does not therefore, affect the
competence of the appeal. It only deprives the appellant of the opportunity to
apply for additional time for making oral submission. Although the appeal was
filed before the amendment of Rule 106, guided by the rules of construction of
statutes, the amendment operates retrospectively - See the Court's decision in
the case of Makongoro v. Consigilio [2005] EA 247 in which the Court held as
follows:
The general rule is that unless there is a clear indication either
from the subject matter or from the working of the Parliament,
that Act should not be given a retrospective construction. One
of the rules of construction that a court uses to ascertain the
intention behind the legislation is that if the legislation affects
substantive rights it will not be construed to have retrospective
operation, unless a clear intention to that effect is manifested,
whereas if it affects procedure only, prima facie it operates
retrospectively unless there is good reason to the contrary.
[Emphasis added].
As regards the missing documents, we think that, from the particular
circumstances of this appeal which originates from a labour dispute, the
omission to include them in the record is not a fatal irregularity. We say so
because, as can be gleaned from the grounds of appeal, the same raise issues of
law which can be determined without recourse to those documents.
Furthermore, the parties are not at issue as regards the missing documents, the
contents of which were extensively analysed and acted upon by the CMA in its
decision. This approach becomes more sound following introduction of the
overriding objective Principle in our jurisprudence by the Written Laws
(Miscellaneous Amendments) (No.3) Act, 2018. Section 3A (1) of that Act
enjoins the Court to apply the principle with a view of facilitating "theJust,
expeditions, proportionate and affordable resolution of all matters governed by
242
the Appellate Jurisdiction Act [Cap. 141 R.E 2002]." In the case of The Director
of Public Prosecutions v. Jackson Sifael Mtares, Criminal Appeal No. 2 of 2018
for example, the Court held that where the record is adequate for determination
of the issues raised in the appeal without the missing documents, the appeal
cannot be found to be incompetent. The Court took inspiration from a persuasive
decision of the Supreme Court of Ghana in the case of Bonuah v. Republic [2005]
GHA 10. In that case, the court had this to say:
The Cardinal Principle is that the law does not demand a
hundred percent perfect record of proceedings, but adequate
record that can answer to the issues raised on appeal.
Adequacy of the record test is therefore a question
determinable in the facts by reference to the grounds of appeal;
weighed against the available record or alternatively the lost
or destroyed record
On that finding, this ground of the preliminary objection is also devoid of merit.
In the end result the preliminary objection is hereby overruled.
Turning now to the appeal, the two grounds revolve around one issue, whether
or not the appellant was entitled to be paid subsistence allowance for the period
between the termination of his employment to the date of the decision of the
CMA. As pointed out above, the learned High Court judge found that the
appellant was not residing in Mtwara during the pendency of the dispute in the
CMA and that therefore, he was not entitled to subsistence allowance. She found
further that although the appellant had claimed for TZS 6,489,000.00 the CMA
awarded TZS 8,466,224.00 the fact which was not disputed by the appellant.
So, in effect the High Court found that the appellant was only entitled to be paid
transportation costs but not subsistence allowance. The learned High Court judge
was of the view that there was evidence that he was not staying in Mtwara after
his termination. In conclusion she stated as follows in her judgment at page 48
of the record:
Having reasoned as I did I confirm the arbitrator order for
payment of Tsh. 240,000/= bus fare for respondent, his wife
and two children, for transport of personal effects. I quash the
subsistence allowance of Tsh. 8,466.224/=.
In the 1st ground of appeal, the appellant challenged that finding contending that
the issue concerning his entitlement to subsistence allowance was not raised in
243
the High Court. That contention is not supported by the record. As stated above,
one of the issues for determination by the High Court was whether or not the
appellant was entitled to be "awarded cost for transportation and salaries a er
resignation' It is an undisputable fact that the appellant was paid 8 months’ salary
in lieu of subsistence allowance. That award was the subject matter of issue No.
(iv) in the respondent's affidavit filed in support of the application for revision.
We therefore agree with the respondent's counsel that this ground of appeal is
untenable. In the circumstances, we do not find merit in the first ground of
appeal.
With regard to the 2nd ground of appeal, the appellant maintained that he was
entitled to the award of subsistence allowance in the form of monthly salary as
ordered by the CMA. He stressed that the High Court erred in reversing that
award on account that he was not living at Mtwara before the payment of his
transportation costs.
As correctly observed by the CMA and the High Court, under S. 43 (1) of
the ELRA, upon termination of employment, an employee is entitled to inter
alia, subsistence allowance during the period between termination of his
employment and the date of payment of costs of his transportation to the place
of recruitment. That provision states as follows:
43 – (i) Where an employee's contract of employment is
terminated at a place other than where the employee was
recruited, the employer
shall either:
a) transport the employee and his personal effects to the place
of recruitment,
b) pay for the transportation of the employee to the place of
recruitment, or
c) pay the employee an allowance for transportation to the
place of recruitment in accordance with subsection (2) and
daily subsistence expenses during the period, if any, between
the date of termination of the contract and the date of
transporting the employee and his family to the place of
recruitment.
From its wording, the section does not, in our view, have a condition tying an
employee to the place of his employment for the whole period until the date of
244
his transportation. In that regard Mr. Mtembwa conceded that employee's
entitlement to subsistence allowance is not conditional upon his confinement to
the place of his employment pending payment of his transportation costs.
On the basis of the above stated position therefore, we find with respect, that the
learned High Court judge erred in reversing the award of the CMA grating the
appellant his claim for subsistence allowance. We however agree with the
learned judge that since the appellant claimed for TZS 6,489,000 the fact which
he did not dispute, the CMA erred in awarding him TZS 8,466,224.00. For that
reason, the appellant is entitled to the claimed amount of TZS 6,489,000.00.
On the basis of the foregoing, we allow the appeal to the extent shown herein
above. Since the appeal originates from a labour dispute, we order each party to
bear its own costs.
GENERATOR LOGIC v. ELI MUKUTA

AT DAR ES SALAAM
(NDIKA, KITUSI, and RUMANYIKA, JJA)
Dar- es Salaam, Wambura. J., dated 16th October, 2018 in Revision No. 285 of
2017)
Ex-parte award – Application for revision to set aside ex-parte award - High
Court strikes out the application for revision holding that the Civil Procedure
Code is inapplicable on the issue - Whether the order of the court of striking out
the application for revision is appealable.
The respondent obtained an ex parte award against the appellant in a labour
dispute before the Commission for Mediation and Arbitration (CMA). The
appellant applied to the High Court, Labour Division for an order of revision of
that award, but that application was struck out upon the High Court sustaining a
point of preliminary objection that the High Court had no jurisdiction over the
245
matter. The appellant appealed to Court only to face another point of preliminary
objection that the impugned order of the High Court is not appealable.
Held: (i) The appeal attempts to challenge an interlocutory decision of the High
Court against the dictates of section 5 (2) (d) of the Appellate Jurisdiction Act
[Cap 141 R.E 2019]. It is therefore improperly before the Court and it is struck
out.
Appeal struck out
Cases referred to
(1) Murtaza Ally Mangungu v. The Returning Officer for Kilwa North
Constituency and 2 Others, Civil Application No. 80 of 2016,
(2) Peter Noel Kingamkono v. Tropical Pesticides Research, Civil
(3) Celestine Samora Manase & 12 Others v. Tanzania Social Action Fund &
Another, Civil Appeal No. 318 of 2019 and;
(4) Khadija Lumbi v. Tanzania Revenue Authority, Civil Appeal No. 240 of
2019
(5) Jaffari Sanya Jussa and Ismail Sanya Jussa v. Saleh Sadiq Osman, Civil

(1) Section 5 (2) (d) of the Appellate Jurisdiction Act [Cap 141 R.E 2019].
(2) Section 87 (5) of the Employment and Labour Relations Act, [Cap 366
R.E 2019]
(3) Section 70 (2) of the Civil Procedure Code Cap 33
Ms. Charli, for Appellant

Mr. Byabusha, for Respondent
RULING OF THE COURT

16th March, 2022
KITUSI, J.A.: The respondent obtained an ex parte award before the

Commission for Mediation and Arbitration (CMA) in Labour Dispute No.
CMA/DSM/KIN/R.1248/16, against the appellant his former employer. The
appellant applied to the High Court, Labour Division for an order of revision of
246
that award, but that application was struck out upon the High Court sustaining a
point of preliminary objection that had been raised by the respondent. The point
of preliminary objection was that the High Court had no jurisdiction over the
matter.
Before the High Court, the parties had contending views as to how should a party
assail an ex parte award. The respondent who had services of Mr. Byabusha
learned advocate, submitted that the applicant had recourse to section 87 (5) of
the Employment and Labour Relations Act, [Cap 366 R.E 2019] (ELRA) by
applying before the CMA to set aside the ex parte award. On the other hand, Ms.
Asia Charli, learned advocate for the applicant, maintained that in terms of
section 70 (2) of the Civil Procedure Code Cap 33 (CPC) a party has the right of
appeal against an ex parte award.
The High Court (Wambura, J) struck out the application for revision, holding
that the CPC was inapplicable on the issue because there is a provision under the
ELRA, section 87 (5) that regulates applications for setting aside ex parte
awards. But the appellant is still at it and has appealed to us, only to face another
point of preliminary objection, the subject of this ruling. The point is:
1. That the impugned order of the High Court is not appealable.
The respondent appeared in person at the hearing, armed with very short written
submissions drawn and lodged by Mr. Byabusha, well ahead of the date of
hearing. When he was invited to address us, the respondent just adopted them.
However, these submissions lodged on 16th December, 2019 may not be of use
in substantiating the point of objection raised on 27th January, 2020. On reading
the submissions, they clearly address the merits of the decision of Wambura, J,
and say nothing on the competence of the appeal before us, which is relevant to
the instant issue.
In resolving the point of objection, we will not cast our net wider than it is
necessary, and without mincing words, we think the appellant is in a wild goose
chase. The issue is whether the order of Wambura J, striking out the application
for revision, is appealable.
We think the last two paragraphs of the Court's order are relevant for our
determination of this point. We reproduce that part:
Again, even if the provisions of the Civil Procedure
Code would be applicable then again, the best procedure within
247
the Civil Procedure Code would be to set aside the same under
order 9 Rule 13 of the same, section 70 (2) of the Civil
Procedure Code is in actual fact optional
In the circumstances, the preliminary objection herein raised is
upheld Matter is struck out for being prematurely filed
before this court.
Although the notice of preliminary objection (PO) is not elaborate nor are the
respondent's scanty submissions, we are certain that he intended to attack the
appeal as being from an interlocutory order.
Appeals against interlocutory orders are barred by section 5 (2) (d) of the
Appellate Jurisdiction Act, [Cap 141 R.E 2019] (the AJA) which provides:
No appeal or application for revision shall lie against or be
made in respect of any preliminary or interlocutory decision or
order of the High Court unless such decision or order has the
effect of finally determining the suit.
In view of that provision of the law, the narrower question is whether the order
of Wambura J, has the effect of finally concluding the rights of the parties.
Over the years, case law has made this task easier for us. This is because case
law has defined what an interlocutory order is and what it means by an order
being final.
In Murtaza Ally Mangungu v. The Returning Officer for Kilwa North
Constituency and 2 Others, Civil Application No. 80 of 2016, (unreported) after
citing our unreported decision of Peter Noel Kingamkono v. Tropical Pesticides
Research, Civil Application No. 2 of 2009, the Court stated:From the above, it
is our view that an order or decision is final only when it finally disposes of the
rights of the parties.
That means that the order or decision must be such that it could not bring back
the matter to the same court.
In the instant case, the impugned order did not slam the door on the appellant’s
face completely, but observed that the appellant's application was premature. We
have recently taken a similar position in Celestine Samora Manase & 12 Others
v. Tanzania Social Action Fund & Another, Civil Appeal No. 318 of 2019 and;
Khadija Lumbi v. Tanzania Revenue Authority, Civil Appeal No. 240 of 2019
(both unreported).
248
We shall avoid discussing Mr. Buxay's argument that section 70 (2) of the CPC
applies, because that would only have come if the appeal had been properly
before us. Even then, it escapes us why the learned counsel called the case of
Jaffari Sanya Jussa and Ismail Sanya Jussa v. Saleh Sadiq Osman, Civil Appeal
No. 54 of 1997 (unreported), to his aid.
The following excerpt from that decision does not support the appellant's
mission, in our view:
It is our settled view that one should only come to this Court
as a last resort after exhausting all available remedies in the
High Court.
We think that sequence is orderly, logical and avoids
confusion and duplication of litigation, as was the case here.
The above paragraph is more or less the same as what we recently stated in
Celestine Samora Manase & Others, (supra):
Perhaps as we conclude, it would be helpful to recall what we
said in Paul A. Kweka (supra) as the rationale of the bar to
appeals against interlocutory decisions:
“Firstly, it promotes an expeditious administration of justice,
that it ensures timely justice, at the same time making access
to justice affordable that is less costly. Secondly, and more
importantly, it affords both parties in the case, equal
opportunity to be heard at the full trial.
We need not say more. It is our conclusion that the appeal attempts to challenge
an interlocutory decision of the High Court against the dictates of section 5 (2)
(d) of the AJA. It is therefore improperly before us so we strike it out, with no
orders as to costs because the matter arises from an employment cause.
Appeal struck out
GRUMETI RESERVES LIMITED v. MORICE AKIRI

AT MUSOMA
249
(WAMBALI, KITUSI, and MASHAKA, JJA.)
Division at Musoma, (Galeba, J. dated 20th September, 2019 in Revision No.
07 of 2016)
Notice of intention to appeal - Appellant did not serve the notice of appeal either
on the respondent in person or his advocate - Whether the appeal is incompetent
- Rule 84 (1) of the Tanzania Court of Rules, 2009
Preliminary objection - Whether a party was served or not, is a factual issue
requiring evidence, which disqualifies it from being a point of law.
Six days before the date fixed for the hearing of this appeal, counsel for the
respondent lodged a notice of Preliminary Objection (PO) raising two twin
points of law which are:
1. The appeal is incompetent for failure of the appellant to
serve the respondent or his advocate with a copy of the notice
of intention to appeal contrary to Rule 84(1) of the Court of
Appeal Rules, [Cap. 141 R.E. 2019] subsidiary.
serve the respondent with a copy of the memorandum of
appeal and record of appeal in time contrary to Rule 97(1) of
the Court of Appeal Rules, [Cap 141 R.E. 2019] subsidiary.
On the date of the scheduled hearing, Mr. Evod Mushi, learned advocate and Mr.
Deya Paul Outa, also learned advocate, appeared for the appellant and
respondent, respectively. Immediately, Mr. Outa informed the Court that he
would abandon the second ground of objection and only argue the first ground,
which he did very briefly.
Held: (i) The reading of the case of Mukisa Biscuits Manufacturing Company
Ltd vs West End Distributors Ltd (1969) E. A. C. A 696 leads the Court to
conclude that this is a point of law because it raises an issue of competence of
the appeal and it may dispose of the matter.
(ii) Since there is no proof of service of a copy of notice of appeal on the
respondent in person nor on his advocate at his address, rule 84 (1) and (2) of
250
the Court of Appeal Rules, 2009 was not complied with. Consequently, the
appeal is incompetent.
Appeal struck out

Cases referred to
(1) Mukisa Biscuits Manufacturing Company Ltd vs West End Distributors
Ltd (1969) E. A. C. A 696
(2) National Microfinance Bank v. Muyodeso, Criminal Appeal No. 289 of
2019
(3) Gaspar Peter v. Mtwara Urban Water Supply Authority, Civil Appeal
No. 35 of 2017
(4) Karata Ernest and Others v. The Attorney General, Civil Revision
No.10 of 2010
(5) Salim Sunderji and Capital Development Authority v. Sadrudin Shariff
Jamal [1993] T.L.R. 224 and
(6) Stephen Wasira v. Joseph Warioba [1997] T.L.R. 205
(1) Rule 84 (1) of the Tanzania Court of Rules,[Cap. 141 R.E. 2019]
(2) Rule 97(1) of the Court of Appeal Rules, [Cap 141 R.E. 2019]
Mr. Mushi, for Appellant

Mr. Outa, for Respondent
RULING OF THE COURT

3rd November, 2021
KITUSI, J.A.: Six days before the date fixed for the hearing of this appeal,
counsel for the respondent lodged a notice of Preliminary Objection (PO)
raising two twin points of law which are:
serve the respondent or his advocate with a copy of the notice
251
of intention to appeal contrary to Rule 84(1) of the Court of
Appeal Rules, [Cap. 141 R.E. 2019] subsidiary.
serve the respondent with a copy of the memorandum of
appeal and record of appeal in time contrary to Rule 97(1) of
the Court of Appeal Rules, [Cap 141 R.E. 2019] subsidiary.
The notice of PO further informed that in arguing it the respondent would rely
on the case of National Microfinance Bank v. Muyodeso, Criminal Appeal No.
289 of 2019 CAT (unreported).
On the date of the scheduled hearing, Mr. Evod Mushi, learned advocate and Mr.
Deya Paul Outa, also learned advocate, appeared for the appellant and
respondent, respectively. Immediately, Mr. Outa informed the Court that he
would abandon the second ground of objection and only argue the first ground,
which he did that very briefly.
With respect, rule 84(1) and (e) of the Rules is very clear on the point under
discussion. It provides:
84 1. An intended appellant shall before, or within fourteen
days after lodging a notice of appeal serve copies of it on all
persons who seem to him to be directly affected by the appeal·
but the Court may, on an ex parte application, direct that
service need not be effected on any person who took no part
in the proceedings in the High Court.
2. Where any person required to be served with a copy of a
notice of appeal gave any address for service in or in
connection with the proceedings in the High Court, and has
not subsequently given any other address for service, the copy
of the notice of appeal may be served on him at that address,
notwithstanding that it may be that of an advocate who has not
been retained for the purpose of an appeal.
We will therefore resolve if that rule was complied with or not, but before that
we are invited to resolve the question whether the point of Preliminary Objection
raised qualifies to be treated as such or not. The appellant's counsel has relied on
the case of Gaspar Peter v. Mtwara Urban Water Supply Authority, Civil Appeal
252
No. 35 of 2017 (unreported) to argue that the point raised by the respondent's
counsel does not qualify because it requires evidence.
However, it is clear to us and we agree with Mr. Outa that the circumstances in
the case of Gaspar Peter (supra) differ from this case. In Gaspar Peter (supra)
service was effected through the address of the advocate who had represented
the respondent at the High Court, but there is no such contention in this case.
Besides, our reading of the case of Mukisa Biscuits Manufacturing Company Ltd
vs West End Distributors Ltd (1969) E. A. C. A 696 leads us to conclude that
this is a point of law because it raises an issue of competence of the appeal and
it may dispose of the matter. For clarity, in Mukisa Biscuits (supra), the erstwhile
East African Court of Appeal said in part:
So far as I am aware, a preliminary objection consists of a
point of law which has been pleaded, or which arises by clear
implication out of pleadings, and which if argued as a
preliminary point may dispose of the suit. Examples are an
objection to the jurisdiction of the court, or a plea of limitation
or a submission that the parties are bound by the contract
giving rise to the suit to refer the dispute to arbitration.
In the case of Karata Ernest and Others v. The Attorney General, Civil Revision
No.10 of 2010 (unreported), the list of the examples was extended to cover
situations where there is no notice of appeal, or leave to appeal or certificate on
point of law where one is required. Our conclusion is that the point raised in this
instance qualifies to be a point of law.
On the merits, the issue is whether or not service was effected in compliance
with rule 84(1) and (2) of the Rules, not whether service was effected in any
other manner even though it was so done in honestly and good faith.
In determining this issue, it is important to read sub rule (2) of rule 84 together
with rule 32(1) of the Rules, which provides:
32. (1) Where any party to an application or appeal changes
his advocate or, having been represented by an advocate/
decides to act in person or/ having acted in person engages an
advocate/ he shall, as soon as practicable/ lodge with the
Registrar notice of the change and shall serve a copy of the
253
notice on the other party appearing in person or separately
represented, as the case may be.
Nowhere does the counsel for the applicant suggest that he served the notice of
appeal to the respondent in person or on the advocate who acted for him at the
High Court. The unambiguous catch word in sub-rule (2) of rule 84 of the Rules
is that service on a party's advocate should be at that advocate's "address"
whether old or new.
What is missing here is proof of the service which Mr. Mushi contends that it
was effected. In Salim Sunderji and Capital Development Authority v. Sadrudin
Shariff Jamal [1993] T.L.R. 224 and Stephen Wasira v. Joseph Warioba [1997]
T.L.R. 205, the Court insisted on proof of service as opposed to bare assertion
by a party. Likewise, in this case, we cannot act on Mr. Mushi's bare statement
from the bar that service was done on Mr. Kalaka through Mr. Philipa who
received and signed it on his behalf.
Therefore, since there is no proof of service of a copy of notice of appeal on the
respondent in person nor on his advocate at his address, rule 84 (1) and (2) of
the Rules was not complied with. Consequently, the appeal is incompetent. The
rationale for this rule and the consequences of non- compliance has been stated
in various cases, such as National Microfinance Bank v. Muyodeso Criminal
Appeal No. 289 of 2019 CAT (unreported).
It is our considered view therefore that, the importance of serving the respondent
with the notice of appeal is to alert him that an appeal is being preferred thus
enable him to prepare for it. Failure of which is fatal to the appear.
Accordingly, for those reasons, we sustain the sole point of preliminary
objection, and strike out the appeal with no order as to costs, this being a labour
matter.
Appeal struck out
HAIDER MWINYIMVUA & 99 OTHERS V. DEPOSIT

INSURANCE BOARD (LIQUIDATOR OF FBME BANK LTD.) &
ANOTHER
254
AT DAR ES SALAAM
(NDIKA, KITUSI and RUMANYIKA, JJA)
Division at Dar es Salaam, Wambura. J., dated 30th October, 2019 in Revision
No. 160 of 2018)
Termination of employment - whether termination of employees of a bank under
liquidation is subject to the retrenchment procedure stipulated by section 38 of
the Employment and Labour Relations Act, [Cap. 366 R.E. 2019]
Liquidation – Appointment of a statutory liquidator – Role of the Deposit
Insurance Board upon its appointment as liquidator
Interpretation - Intention of the legislature in enacting section 41 of the Banking
and Financial Institutions Act, 2006
Interpretation –Termination based on operational requirements, otherwise
referred to as “retrenchment’’ – Retrenchment not defined in the Employment
and Labour Relations Act, Cap 366 - What the legislature had in mind by the
term "retrenchment."
Central to this appeal is a narrow but crucial issue. It is whether termination of

employees of a bank under liquidation is subject to the retrenchment procedure
stipulated by section 38 of the Employment and Labour Relations Act, [Cap. 366
R.E. 2019]. The above question arises as follows: FBME Bank Limited
("FBME'') was a commercial bank licensed to carry on business in the country.
On 24th July, 2014, the Bank of Tanzania ("BoT''), placed FBME under statutory
management. Subsequently, BoT revoked the license of FBME and placed it
under compulsory liquidation pursuant to sections 41 (1) (a) and 61 (1) of the
Banking and Financial Institutions Act. 2006 (''the Banking Act"). The first
respondent the Deposit Insurance Board (''DIB') 'was appointed the liquidator
effective 8th May, 2017. In carrying out its statutory mandate DIB issued a notice
dated 19th May, 2017 to all employees intimating its intention to terminate all
employment contracts within one month of the notice. On 23rd June, 2017, DIB
issued another notice of termination to all employees after the first one had
lapsed. This was followed up a month later, on 21st July, 2017 with letters of
termination.
255
The appellants were unhappy and so, they instituted an unfair termination claim
in the Commission for Mediation and Arbitration ("the CMA") asserting, among
others, that the termination violated the mandatory retrenchment procedure
provided under section 38 of the ELRA. The CMA decided it in favour of the
appellants. The High Court, Labour Division partly vacated the aforesaid award
upon revision at the instance of the respondents. The appellants now challenge
the above decision on four grounds of appeal.
Held: (i) Once DIB is appointed by BoT as the liquidator of a bank, the
appointment would have the same effect as that of a court-appointed liquidator
and that DIB must carry out the liquidation in accordance with the provisions of
the liquidation regulations made under the Banking and Financial Institutions
Act, 2006.
(ii) By indicating that section 41 of the Act was enacted “Notwithstanding any
other written law”, the legislature must have meant that the liquidation process
must be executed solely in accordance with provisions of that section and that
the provisions of other written laws would have no effect.
(iii) Cognizant of the fact that the liquidation process also entails settlement of
the obligations of the bank under liquidation to its employees, it is without doubt
that the legislature intended that such obligations be dealt with within the legal
framework of liquidation as opposed to any piece of legislation on labour
matters.
(iv) Where an undertaking is due to be closed as a result of liquidation there
would be no possibility to apply any measures to avoid or minimize the
anticipated retrenchment nor would there be an opportunity of selection of the
employees to be retrenched. Such a scenario would involve a complete discharge
of all employees as opposed to targeted retrenchment.
(v) In this context, the term retrenchment appears to have been used in restricted
terms and, so it does not include termination following closure of business due
to, say, compulsory liquidation.
(vi) Section 38 uses the term "retrenchment" in its ordinary, accepted
connotation. Retrenchment is used restrictively to mean the discharge of surplus
labour due to operational requirements in a continuing or running undertaking.
It does not apply to a case where a bank is closed down and wound up under
compulsory liquidation pursuant to the provisions of the Banking Act.
256
Appeal dismissed
Cases referred to
(1) Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union,1956
SCR 872, AIR 1957 SC 95; and
(2) Barsi Light Rly. Co. Ltd. v. K. N. Ioglekar, AIR 1957 SC 121.

(1) section 38 of the Employment and Labour Relations Act, [Cap. 366 R.E.
2019];
(2) Section 41 (1) (a) of the Banking and Financial Institutions Act. 2006 ;
and
(3) Section 61 (1) of the Banking and Financial Institutions Act. 2006.
Mr. Mushi, for Appellants

Mr. Mrisha, Principsl State Attorney, Mses Mhina and Makyoo, State
Attorneys, for Respondents

7th March, 2022
NDIKA, J.A.: Central to this appeal is a narrow but crucial issue. It is whether
termination of employees of a bank under liquidation is subject to the
retrenchment procedure stipulated by section 38 of the Employment and Labour
Relations Act, [Cap. 366 R.E. 2019] ("the ELRA'').
The above question arises as follows: FBME Bank Limited ("FBME'') was a
commercial bank licensed to carry on business in the country. It is common
ground that on 24th July, 2014, the Bank of Tanzania ("BoT''), as the central bank
in the country, placed FBME under statutory management. Subsequently, BoT
revoked the license of FBME and placed it, vide Government Notice No. 986 of
2017 of 5th May, 2017, under compulsory liquidation pursuant to sections 41 (1)
(a) and 61 (1) of the Banking and Financial Institutions Act. 2006 (''the Banking
Act"). The first respondent herein, the Deposit Insurance Board (''DIB''), a
statutory body existing under section 37 (1) of the Banking Act, was appointed
the liquidator effective 8th May, 2017. DIB was specifically charged to wind up
the affairs of FBME and to take such other actions as might be necessary for the
257
orderly realization, conservation and preservation of FBME's assets and the
settlement of its obligations in accordance with the law.
In carrying out its statutory mandate and being aware that following the ensuing
liquidation the termination of employees was unavoidable, DIB issued a notice
dated 19th May, 2017 (Exhibit D3) to all employees intimating its intention to
terminate all employment contracts within one month of the notice. It indicated
that it would hold consultative meetings with the representatives of the
employees and undertook to pay all terminal benefits upon conclusion of the
consultations. The planned consultations were conducted and DIB indicated its
inclination to pay salaries for June and July, 2017, severance pay, accrued leave
pay, repatriation expenses and pension contributions as well as issuance of
certificates of service. The appellants were not satisfied with the proposed
package of terminal benefits.
On 23rd June, 2017, DIB issued another notice of termination to all employees
after the first one had lapsed. This was followed up a month later, on 21st July,
2017 to be exact, with letters of termination (Exhibit D5) issued to the appellants
along with the payment of salary for the July, 2017 and repatriation expenses.
No other terminal benefits were paid allegedly because the process stalled due
to the disagreement between the parties on the quantum thereof. However, on 7th
August, 2017 DIB issued a letter to each appellant indicating a sum of money it
was prepared to pay as severance and accrued leave pay as the final tranche of
accrued terminal benefits. The letters were collectively admitted as Exhibit D6.
The appellants were unhappy and so, they instituted an unfair termination claim
in the Commission for Mediation and Arbitration ("the CMA") seeking payment
of a total of TZS. 60,387,486,562.32 as terminal benefits. Apart from asserting
that the termination violated the mandatory retrenchment procedure provided
under section 38 of the ELRA, the appellants claimed that the respondents did
not pay any terminal benefits.
The matter was eventually referred to an arbitrator (Hon. Kiwelu, L.) who
decided it in favour of the appellants. In arriving at that decision, he primarily
held that the discharge of the appellants from their employment by DIB
following liquidation had to comply with the retrenchment procedure enacted by
section 38 of the ELRA because FBME was solvent at the material time and that
it only had to be wound up on BoT's direction, not due to insolvency. Secondly,
while the arbitrator found that the termination was based on a valid and fair
reason, he took the view that DIS flouted the aforesaid statutory retrenchment
258
procedure, the appellants having not been fully consulted and heard on the matter
before the termination letters were issued. In the premises, he found the
termination of employment of all appellants unfair and proceeded to award each
of them, in terms of section 40 (1) of the ELRA, twelve months' remuneration
plus one month's salary in lieu of notice. In addition, DIB was ordered to pay
each appellant severance and accrued leave pay as presented in terminal benefits
letters issued by DIB to the appellants on 7th August, 2017 (Exhibit D6). It should
also be noted that the arbitrator rejected the appellants, other claims for annual
bonus known as the "thirteenth salary", increment arrears, loyalty scheme pay,
golden handshake and silver plate pay on reason that they were unsubstantiated.
The High Court, Labour Division (Wambura, J.) partly vacated the aforesaid
award upon revision at the instance of the respondents. At first, the court faulted
the arbitrator for reasoning that FBME was wound up on the reason other than
insolvency as if he was questioning the validity of the liquidation. Then, it
reasoned that section 38 of the ELRA was inapplicable to the impugned
terminations occurring in the course of liquidation. In her view, the terminations
arose from the closing down of the business, hence they were not discharges
arising from retrenchment. The court was firm that D1B was not bound to follow
the retrenchment procedure laid under section 38 (2) of the ELRA.
Ultimately, the court set aside the twelve months' remuneration compensation
order on the ground that the appellants could not be reinstated into a soon-to-be
wound up entity. However, the court upheld the order for payment of one
month's remuneration in lieu of notice, accrued leave pay, severance pay and
repatriation expenses (if unpaid or need to be reviewed) contributions as well as
issuance of certificates of service.
The appellants now challenge the above decision on four grounds of appeal,
which we rephrase as follows:
1. That the High Court erred in law in misinterpreting section 38
of the ELRA by holding that it did not apply to the case at
hand.
2. That the High Court erred in law for failing to understand that
no law exempts liquidators from compliance with the
statutory retrenchment procedure.
3. That the High Court erred in law for not holding that DIB as
the liquidator stepped into the shoes of FBME and
259
accordingly it had to comply with the relevant statutory
retrenchment procedure.
4. That the High Court erred in law for failing to appreciate that
where there was no consensus between the parties on the
proposed retrenchment, D1B was required to refer the matter
to the CMA for mediation instead of unilaterally terminating
the appellants.
We have examined the record of appeal and considered the contending oral and
written arguments of the learned counsel. In our view, the appeal hinges on the
question we posed earlier whether the impugned termination of the appellants as
employees of FBME under liquidation was subject to the retrenchment
procedure stipulated by section 38 of the ELRA.
At first, it is common ground that following the revocation of its licence, FBME
was placed by BoT under compulsory liquidation pursuant to sections 41 (1) (a)
and 61 (1) of the Banking Act with DIB serving as the liquidator. The role of
DIB, as indicated earlier, was to wind up the affairs of FBME and to take such
other actions as might be necessary for the orderly realization, conservation and
preservation of FBME's assets and the settlement of its obligations in accordance
with the law. This role is encapsulated by section 41 (a) of the Banking Act,
which we extract thus:
41. Notwithstanding any other written law-

(a) where a bank or financial institution becomes insolvent, as
determined by the Bank the Bank may appoint the DIB to be
a liquidator and the appointment shall have the same effect as
the appointment of any other liquidator by the court and such
liquidation shall proceed in accordance with the provisions
of liquidation regulations made under this Act.” [Emphasis
added]
The above provision says it all. Once DIB is appointed by BoT as the liquidator
of a bank, as happened in the instant case, the appointment would have the same
effect as that of a court-appointed liquidator and that DIB must carry out the
liquidation in accordance with the provisions of the liquidation regulations made
260
under the Act. By indicating that section 41 was enacted “Notwithstanding any
other written law”, the legislature must have meant that the liquidation process
must be executed solely in accordance with provisions of that section and that
the provisions of other written laws would have no effect. As we are cognizant
of the fact that the liquidation process would also entail settlement of the
obligations of the bank under liquidation to its employees, we hold without doubt
that the legislature intended that such obligations be dealt with within the legal
framework of liquidation as opposed to any piece of legislation on labour
matters.
The above notwithstanding, we think we should proceed to construe section 38
of the ELRA to determine if it is applicable to the case at hand. The said
provision, which we deliberately extract in full, states as follows:
38.-(1) In any termination for operational requirements
{retrenchment}, the employer shall comply with the
following principles, that is to say, he shall-
(a) give notice of any intention to retrench as soon as it is
contemplated;
(b) disclose all relevant information on the intended
retrenchment for the purpose of proper consultation;
(c) prior to retrenchment or redundancy on -
(i) the reasons for the intended retrenchment;
(ii) any measures to avoid or minimize the intended
retrenchment;
(iii) the method of selection of the employees to be
retrenched;
(iv) the timing of the retrenchments; and
(v) severance pay in respect of the retrenchments,
(d) give the notice, make the disclosure and consult, in
terms of this subsection, w1th-
(i) any trade union recognized in terms of section 67;
(ii) any registered trade union which members in the workplace
not represented by a recognised trade union;
(iii) any employees not represented by a recognized or
registered trade union.
(2) Where in the consultations held in terms of sub-section (1)
no agreement is reached between the parties, the matter shall
be referred to mediation under Part VIII of this Act..
261
(3)Where the mediation has failed, the dispute shall be referred
for arbitration which shall be concluded within thirty days
during which period no retrenchment shall take effect and,
where the employees are dissatisfied with the award and are
desirous to proceed with revision to the Labour Court under
section 91(2), the employer may proceed with their
retrenchment. [Emphasis added]
Subsection (1) of section 38 above expressly stipulates that it applies to "any

termination for operational requirements" which, in other words, is referred to
as "retrenchment." While section 4 of the ELRA defines operational
requirements so expansively to mean "requirements based on the economic,
technological, structural or similar needs of the employer," no definition is given
of what the corresponding term "retrenchment" means. Nevertheless, by
examining the content of subsection (1) quite closely, it is possible to arrive at
what the legislature had in mind by the term "retrenchment." We shall
demonstrate.
In our view, it is clear that subsection (1) (a), (b) and (c) above creates three
preconditions for retrenchment: one that it imposes on the employer the onus to
give notice of any intention to retrench as soon as it is contemplated. Secondly,
it requires the employer to disclose all relevant information on the intended
retrenchment for the purpose of proper consultation. Thirdly, it enjoins the
employer to consult prior to retrenchment or redundancy on five matters (see
subsection (1) (c) (i) to (v) above) two of which are relevant for our present
purposes. These are the requirements that the consultation process should
address any possible measures that can avert or minimize the intended
retrenchment and the method of selection of the employees to be retrenched (see
subsection (1) (c) (ii) and (iii) above). It occurs to us that where an undertaking
is due to be closed as a result, for example, of liquidation as has been the case
with FBME, there would be no possibility to apply any measures to avoid or
minimize the anticipated retrenchment nor would there be an opportunity of
selection of the employees to be retrenched. Such a scenario would involve a
complete discharge of all employees as opposed to targeted retrenchment. In this
context, the term retrenchment appears to have been used in restricted terms and,
so it does not include termination following closure of business due to, say,
compulsory liquidation.
262
We are aware of, at least, two persuasive decisions of the Supreme Court of India
in which the Court aptly defined the term "retrenchment." In the first case of
Pipraich Sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union,1956 SCR
872, AIR 1957 SC 95, the Court, defined the terms retrenchment in its ordinary
parlance thus:
Though there is discharge of workmen both when there is
retrenchment and closure of business, the compensation is to
be awarded under the law, not for discharge as such but for
discharge on retrenchment, and if, as is conceived,
retrenchment means in ordinary parlance, discharge of
the surplus, it cannot include discharge on closure of
business. [Emphasis added]
The said Court followed the above decision in its subsequent decision, in Barsi
Light Rly. Co. Ltd. v. K. N. Ioglekar, AIR 1957 SC 121 as it held, per Das, J.,
as follows:
Retrenchment as defined in Section 2( ) and as used in Section
25-F has no wider meaning than the ordinary accepted
connotation of the word: It means the discharge of surplus
labour or a staff by the employer for any reasons
whatsoever, otherwise than as a punishment inflicted by way
of disciplinary action, and it has no application where the
services of all workmen have been terminated by the
employer on a real and bona fide closure of business as in
the case of Shri Dinesh Mills Ltd., or where the services of
all workmen have been terminated by the employer on the
business or undertaking being taken over by another employer
.... [Emphasis added]
We think that the position taken in the above decisions is in line with our view
that section 38 uses the term "retrenchment" in its ordinary, accepted
connotation. Thus, retrenchment is used restrictively to mean the discharge of
surplus labour due to operational requirements in a continuing or running
undertaking. It does not apply to the instant case where FBME was closed down
and wound up under compulsory liquidation pursuant to the provisions of the
Banking Act. We, therefore, do not find any fault in the reasoning and holding
by the High Court. In the premises, all four grounds of appeal fail.
263
In the final analysis, we hold that the appeal is unmerited. It stands dismissed.
Given that the appeal concerned a labour dispute normally attracting no award
of costs, we make no order as to costs.
Appeal dismissed
HAMAD KOSHUMA v. TANZANIA PORTS AUTHORITY

AT DAR ES SALAAM
(MZIRAY, NDIKA, and MWAMBEGELE, JJ.A.)
Division at Dar es Salaam, Aboud, J. dated the 1st day of December, 2015 in
Termination of employment - By virtue of his office, appellant's disciplinary
authority was the respondent's Board of Directors – Appellant informed orally
by the Board of its decision to terminate the Appellant – Letter of termination
signed by the Acting Human Resources Director of the respondent – Whether
the appellant's dismissal from office was made by the proper authority and
whether the termination was substantively and procedurally unfair.)
The appellant herein, was an employee of the respondent, as its Deputy Director
General (Corporate Services) but was dismissed on 11th January, 2013 in a
manner that he alleged to be both procedurally and substantively unfair. He
unsuccessfully challenged the dismissal, at the first instance, before the
Commission for Mediation and Arbitration ("the CMA'') and then, on revision,
before the High Court, Labour Division at Dar es Salaam. Still undaunted, he
now appeals to this Court.
Held: (i) The letter notified the appellant of the Board's decision to dismiss him
from office with effect from 9th January, 2013. The respondent's attempt to
impute the dismissal to the author of the letter (that is the Ag. DHR) as an act of
unilateral and unlawful assumption of disciplinary powers in implausible and
disingenuous.
Appeal dismissed
264
Cases referred to
(1) International Medical and Technological University v. Eliwangu Ngowi,
High Court, Labour Division at Dar es Salaam, Revision No. 54 of 2008.

(1) Rule 13 (8) and (10) of the Employment and Labour Relations (Code of
Good Practice) Rules, 2007, G.N. No. 42 of 2007.
Mr. Mwalongo, for Appellant


30th July, 2019
NDIKA, J.A.: Hamadi Koshuma, the appellant herein, was an employee of the
respondent, Tanzania Ports Authority, as its Deputy Director General (Corporate
Services) but was dismissed on 11th January, 2013 in a manner that he alleged to
be both procedurally and substantively unfair. He unsuccessfully challenged the
dismissal, at the first instance, before the Commission for Mediation and
Arbitration ("the CMA'') and then, on revision, before the High Court, Labour
Division at Dar es Salaam. Still undaunted, he now appeals to this Court.
The essential facts of the case are mostly undisputed and straightforward. The
appellant was employed by the respondent on 15th June, 1993 and that on 24th
February, 1999 he assumed the position of Assistant Secretary and Legal Officer.
On 22nd September, 2008 he was elevated to the rank of Executive Assistant to
the Director General, the position that he held until his appointment as the
Deputy Director General - Corporate Services on 28th May, 2012.
On 23rd August, 2012 the appellant was suspended from office pending
investigations into certain allegations against him. Subsequently, disciplinary
proceedings were instituted against him for abuse of office, gross misconduct,
gross inefficiency and gross dishonesty. In the end, he was dismissed from office
as alluded to earlier.
Aggrieved, the appellant referred the matter to the CMA, claiming reliefs for
unfair dismissal as follows: first, twenty-four months' remuneration as
265
compensation for unfair termination of employment at the monthly rate of TZS.
12,128,451.20 amounting to TZS. 291,082,828.89; secondly, payment of
monthly salary at TZS. 12,128,451.20 from the date of unfair termination (i.e.,
9th January, 2013) to the date of full payment of compensation for unfair
termination; and finally, payment of TZS.316,687,336.89 being terminal
benefits known as "Tuzo ya Kilimo Kwanza" pursuant to the Tanzania Ports
Authority Collective Bargaining Agreement as per the agreed formula.
The aforesaid action was barren of fruit, hence the appellant, as stated earlier,
instituted revision proceedings in the High Court raising five grounds of
complaint. One of the contested issues in both the CMA and the High Court was
his complaint that the termination was made by a certain Mr. P.O. Gawile
(DW.3), the respondent's Acting Director of Human Resources (" Ag. OHR''),
who had no authority to do so and hence the dismissal was made unfairly.
In her decision, the learned High Court Judge (Aboud, J.) upheld the CMA's
holding that the dismissal complained of was not made by a wrong authority.
While acknowledging that by virtue of his office the appellant's disciplinary
authority was the respondent's Board of Directors ("the Board'') and that the Ag.
DHR had not been delegated any disciplinary power by the Board, the learned
Judge confirmed that the dismissal was made by the Board. For clarity, we wish
to excerpt the relevant concluding part of that decision thus:
the applicant [appellant herein] was orally informed of the
decision of the Board by the Board itself. This fact was not
disputed by the applicant [appellant herein] which implies that
he knew the intention and the final decision of the Board even
before he received the letter to that effect authored by DW3.
On the basis of the above discussion I am of the view that the
content of the letter of termination clearly reflects that the
writer reported the decision of the Board to terminate the
applicant [appellant herein] and he was not the one who
decided to terminate the appellant .... I, therefore, see no
reason to fault the CMA decision.
The thrust of the present appeal is an attack on the above excerpted finding as is
evident from the only ground of appeal raised by the appellant in his
Memorandum of Appeal as hereunder:
266
1. The Honourable Judge erred in law in holding that the
termination of the contract of employment of the appellant,
who was the Deputy Director General, done by the Acting
Director for Human Resources without delegated authority
was proper.
At the hearing before us, Messrs. Frank Mwalongo and Evod Mushi, both
learned counsel, appeared for the appellant and respondent respectively.
We have dispassionately considered the opposing learned submissions and
examined the record of appeal. The sticking point for our determination is
whether the appellant's dismissal from office was made by the proper authority.
It was common ground before the CMA that the disciplinary authority for the
appellant, in his former position as the Deputy Director General, was the Board
and that at no point in time was such authority ever delegated to any other organ
or official of the respondent. Moreover, it is uncontroverted that the disciplinary
proceedings against appellant were conducted by the Board itself. As rightly
argued by Mr. Mushi, the appellant acknowledged before the CMA to have
appeared before the Board on 9th January, 2013 after his disciplinary hearing on
4th January, 2013 and that he was then informed orally of his dismissal by the
Board. He was further notified by the Board that the said decision would be
communicated to him in writing, which was certainly in line with the
respondent's peremptory obligation as the employer under Rule 13 (8) and (10)
of the Employment and Labour Relations (Code of Good Practice) Rules, 2007,
G.N. No. 42 of 2007 proving as follows:
13(8) After the hearing, the employer shall communicate the
decision taken, and preferably furnish the employee with
written notification of the decision, together with brief
reasons.
(9) [Omitted]
(10)Where employment is terminated, the employee shall be
given the reason for termination and reminded of any rights to
refer a dispute concerning the fairness of the termination under
a collective agreement or to the Commission for Mediation
and Arbitration under the Act.
267
As undertaken, the appellant was subsequently served with the letter of
termination, dated 11th January, 2013 and signed by the Ag. OHR. The relevant
parts thereof read in Swahili as hereunder:
Kumb. Na. SIHRIDISC/93575 Tarehe: 11Januari, 2013
Bw. Hamadi Koshuma
C/No: 93575
Naibu Mkurugenzi Mkuu (Huduma) -TPSS 3
KUACHISHWA KAZI
Tafadhali rejea Kikao cha Nidhamu baina yako na Bodi ya
Wakurugenzi katika kikao chake cha faragha cha 48 (A)
kilichofanyika katika Ukumbi wa Mikutano wa Pius Msekwa
kwenye Ofisi Ndogo za Bunge Dar es Salaam, tarehe 4 na 9
Januari, 2013 ambapo ulipewa nafasi ya kujitetea dhidi ya
tuhuma mbalimbali za kinidhamu zilizokuwa zinakukabili
kwenye hati yako ya mashitaka.
Bodi baada ya kupitia ushahidi dhidi yako na utetezi na
ushahidi wako iliridhika kuwa una hatia kwa makosa
yafuatayo:
1. Kuthibitika kuwepo kwa matumizi mabaya ya madaraka
kwa kutumia utaratibu ulioanzishwa kinyume cha sheria ya
manunuzi katika kuingia zabuni bila ya kufuata utaratibu kwa
kisingizio cha miradi mikubwa.
2. Kuthibitika kwa kukosa uaminifu kulikopindukia kwa
kuipotosha Bodi kufikia uamuzi wa kuanzisha utaratibu wa
manunuzi nje ya utaratibu wa sheria, kisha kutumia utaratibu
huo kuingia zabuni bila kufuata utaratibu kwa kisingizio cha
miradi mikubwa ambayo imekuwa haina tija zaidi ya
matumizi mabaya ya fedha za umma.
3. Kuthibitika kuwepo kwa ufanisi duni kwa:
i) Ukiwa kama mjumbe wa Bodi ya Zabuni, ulishindwa
kuijulisha Mamlaka ya Rufaa ya Manunuzi ya Umma (PPRA)
kuhusu ukiukwaji wa Sheria ya Manunuzi kwa mujibu wa
kifungu cha 31 kifungu kidogo cha 4 cha Sheria hiyo kwa
268
mfano; kuingiwa kwa mkataba wa kibiashara na kampuni ya
China Communications Construction Company (CCCC) bila
kushirikisha Bodi ya Zabuni kinyume cha matakwa ya sheria
ya manunuzi ya umma.
ii) Kushindwa kutoa ushauri wa kitaalam kwa Mkurugenzi
Mkuu wa
Mamlaka katika kudhibiti na uendeshaji wa Mamlaka.
4. Kuthibitika kuwepo kwa ukiukwaji wa sheria na taratibu
kwa kukiuka taratibu za manunuzi ya umma kwa mfano;
kuingiwa kwa mkataba na kampuni ya China
Communications Constructins Company (CCCC) bila
kushirikisha Bodi ya Zabuni kinyume na matakwa ya Sheria
ya Manunuzi ya Umma.
Kwa makosa hayo Bodi imefikia uamuzi wa kukuachisha kazi
kuanzia tarehe 9 Januari, 2013.
Hivyo utalipwa mafao yafuatayo: [Omitted]
Unatakiwa kukabidhi nyenzo/kifaa chochote ulichokabidhiwa
kwa ufanisi wa kazi za Mamlaka ikiwa ni pamoja na kurejesha
kitambulisho cha Mamlaka katika Ofisi ya Mkuu wa Ulinzi.
Ninakutakia kila la kheri.
P.D. Gawile
KAIMU MKURUGENZI WA UTUMISHI"
[Underlining added]
The above underlined text leaves no shred of doubt that the said letter notified
the appellant of the Board's decision to dismiss him from office with effect from
9th January, 2013. Apart from stating that the dismissal was reached by the Board
at the end of the disciplinary hearing conducted on 4th and 9th January, 2013, the
said letter enumerates the offences which the appellant was charged with and
convicted of and provides a synopsis of the evidence and findings against him.
In this context, the respondent's attempt to impute the dismissal to the author of
that letter (that is the Ag. DHR) as an act of unilateral and unlawful assumption
of disciplinary powers is, with respect, implausible and disingenuous. We thus
269
uphold the concurrent finding by the courts below that it was not the Ag. DHR
but the Board that terminated the appellant's employment with the respondent.
It was not lost on us that in furtherance of his main submission, Mr. Mwalongo
also assailed the dismissal letter for being unauthentic and illegal, having not
been signed by authorized officers contrary to the mandatory provisions of
Paragraph 9 (1), (2) and (3) of the First Schedule to the Act. We are, with respect,
unpersuaded by this submission. As rightly argued by Mr. Mushi, the provision
cited by Mr. Mwalongo is not only inapplicable but also irrelevant to the instant
matter. To demonstrate that view, we wish to examine the said provision, which
we reproduce hereunder in full:
9. - (1) The application of the official seal of the Authority
shall be authenticated by two signatures, namely-
(a) the signature of the Chairman of the Board or some other
member of the Board authorized by the Board in that behalf;
and
(b) the signature of the Director General or some other
employee of the Authority authorized by the Board to act for
that purpose in place of the Director General.
(2) Any instrument or contract which, if executed or entered
into by a person other than a body corporate, would not be
required to be under seal, may be executed or entered into on
behalf of the Authority by the Director General or any other
member of the Board if that member has previously been
authorized, either specifically or generally by resolution of the
Board, to execute or enter into that particular instrument or
contract or that class of instruments or contracts.
(3) Every document purporting to be a document executed or
issued by or on behalf of the Authority and to be-
(a) sealed with the official seal of the Authority authenticated
in the manner provided by subparagraph (1); or
(b) signed by the Director General or by a member of the Board
authorized in accordance with subparagraph (2) to act for that
purpose, shall be deemed to be so executed or issued until the
contrary is proved.
We think there is no ambiguity or abstruseness in the above provision, and so

we are compelled to read and interpret it literally. On a plain and ordinary
270
meaning, the said provision unmistakably governs execution of instruments,
contracts and documents between the respondent Authority, on the one hand,
and other persons, be they natural or juristic, on the other. It lays down the law
and procedure for authenticating such instruments, contracts and documents so
as to assure or guarantee their bindingness on the respondent. It is our decided
view that all internal correspondences including administrative communications
such as the dismissal letter complained of are not contemplated within the tenor
and spirit of that provision. Mr. Mushi correctly argued that the Board, being the
supreme organ of the respondent, does not handle day- to-day management
issues and that its decisions are invariably communicated by the Management as
was the case with the appellant's termination from employment.
To extend the argument further, we wish to comment, albeit briefly, on Mr.
Mwalongo's reliance on the High Court, Labour Division's decision in
International Medical and Technological University v. Eliwangu Ngowi, High
Court, Labour Division at Dar es Salaam, Revision No. 54 of 2008 (unreported),
for the proposition that a termination from employment by a wrong or improper
authority amounts to unfair termination. Much as we approve the statement of
principle enunciated in that case, we are unconvinced that this decision is of any
help to the appellant's cause. We think Mr. Mushi rightly distinguished it from
the instant matter in that in the instant case the letter of dismissal was authentic
and unblemished; that it was never denied by the respondent's Chief Executive
Officer (the Director General) in his testimony before the CMA; and that,
overall, there was no proof that the Ag. DHR usurped any disciplinary powers
over the appellant. In conclusion, we hold the sole ground in this appeal
unmerited.
That said and done, we dismiss the appeal as it is bereft of substance. This
dispute being a labour matter, there are shall be no order as to costs.
Appeal dismissed
HASSAN TWAIB NGONYANI v. TAZAMA PIPE LINE LIMITED

AT DAR ES SALAAM
(KWARIKO, MAIGE, and MWAMPASHI, JJ.A.)
271
(Appeal from the decision of the High Court of Tanzania at Dar es Salaam,
Sheikh, J., dated 30th October, 2014 in Civil Revision No. 40 of 2012)
Termination of employment – summary dismissal – circumstances in which it
can be applied.
Jurisdiction – executing court – Conciliation Board decreed that appellant be
paid all his terminal benefits according to the laws and voluntary agreement
relating to his employment –Board did not specify items of terminal benefits -
whether an executing court has no jurisdiction to execute what is beyond the
decree.
The appellant was an employee of the respondent. The appellant was summarily
dismissed for the reason of absence from work without leave. On reference of
the dismissal to the Conciliation Board, the summary dismissal in question was
held to be inappropriate. Pursuant to the decision of the Board, the respondent
paid the appellant his entire due terminal benefits and repatriation benefits and
caused him to sign a document described as a discharge certificate. The appellant
instituted an execution case at the District Court seeking to be paid subsistence
allowance during the time that he was terminated to when he was paid his
repatriation benefits. The executing court, fell in agreement with the respondent
that, the appellant was not justified to make a further claim after signing a
discharge certificate. It struck out the application for execution for being
misconceived. Displeased, the appellant preferred an appeal to the High Court.
The High Court Judge concurred with the executing magistrate that, since it was
not expressed in the decision of the Board that, the appellant was entitled
subsistence allowance and/ or repatriation costs, how much and to what extent,
the claim sought did not fall within the jurisdiction of an executing court.
Dissatisfied with the decision, hence, this appeal.
Held: i) An employer could only summarily dismiss an employee on account of

breaches of Disciplinary Code and subject to the conditions set out in the Act. A
person aggrieved from such decision, would refer the matter to the Board under
section 24(1) of the SEA and on further dissatisfaction, to the Minister under
section 27 of the same Act.
ii) The decision of the Board or the Minister was final and conclusive, binding
to the parties to the reference and could be enforced in any court of competent
jurisdiction as if it were a decree.
272
iii) The Board, in its decision, decreed that the appellant be paid all his terminal
benefits according to the laws and voluntary agreement relating to his
employment. It did not specify items of terminal benefits. What should be paid
to the appellant as terminal benefits was implied by law and voluntary
agreement. To give effect to the decree, the executing court was bound to
construe the decree in line with the employment laws and voluntary agreement
and in so doing it could not be said to have gone beyond the terms of the decree.
iv) Where the resolution of any of the questions requires ascertainment of
controversial factual issues, the executing court is entitled, under section 38(2)
of the CPC even to convert execution proceedings into a suit. In so long as the
claim is captured by the decree, whether expressly or constructively, it is within
the power of the executing court to compute the same.
Appeal allowed
Cases referred to
(1) Karata Ernest and Others v. The Attorney General, Civil Revision No. 10
of 2010
(2) National Insurance Corporation v. Maligisa Manyangu and 24 Others,
Civil Revision No. 14 of 2017
(1) Section 40 (1) (a) of the Security of Employment Act [Cap. 387 R.E.
2002]
(2) Order XXI rule 57 of the Civil Procedure Code [Cap. 33 R.E. 2019]
(3) Section 38(1) of the Civil Procedure Code. [Cap 33 R.E. 2019]
(4) Section of 59 of the repealed Employment Act [Cap. 366 R.E. 2002]
Mr Kahendaguza, for Appellant
Mr. Kariwa, for Respondent

Dated 2nd March, 2022
273
MAIGE, J.A.: For some time before their relation had become irreconcilable,
the appellant and the respondent were in employment relation wherein the
former was the employee and the latter the employer. It would appear that, in the
2005 General Elections, the appellant contested for membership of Parliament
for Namtumbo Constituency and was, on 21st August, 2005, declared by the
National Electoral Commission, as one among the candidates contesting for the
respective parliamentary seat. On the same day, the appellant was summarily
dismissed for the reason of absence without leave. On reference to the
Conciliation Board (“the Board”) in terms of section 40 (1) (a) of the Security of
Employment Act [Cap. 387 R.E. 2002] (“the SEA”), the summary dismissal in
question was held to be inappropriate. It was thus reversed and substituted with
an order that, the employment of the appellant was terminated, by operation of
the law, on 21st day of August, 2005 when the appellant was declared a contestant
for the Namtumbo parliamentary seat. It thus decreed as follows:
... na kwa mjibu wa aya ya 6.3.4.4. ya Waraka huo
mrufani anastahili kulipwa stahili zake zote za utumishi
kulingana na Sheria za Nchi na Mkataba wa hiari
unaomuhusu.
Literally translated the afore said words mean:
...and in accordance with paragraph 6.3.4.4. of the said
Circular (the Circular of the Chief Secretary No. 1 of
2000), the appellant is entitled to be paid all his terminal
benefits in accordance with the laws of the land and the
voluntary agreement that relates to his service.
Pursuant to the decision as aforesaid, the respondent paid the appellant on 12th
July, 2006, TZS 26,385,953.05 being his entire due terminal benefits including
TZS 5,030,874.00 as Repatriation benefits and caused him to sign a document
described as a discharge certificate.
The above aside, on 3rd day of March, 2008, the appellant instituted, at the
District Court of Morogoro (“the executing court”), Miscellaneous Employment
Cause No. 11 of 2008 through Form No. CC 10 seeking to realize USD 83,750
as subsistence allowance from 21st day of August 2005 when he was terminated
to 12th July, 2006 when he was paid his repatriation benefits.
In response, the respondent filed, vide Miscellaneous Employment Cause No. 14
of 2008, objection proceedings under Order XXI rule 57 of the Civil Procedure
274
Code [Cap. 33 R.E. 2019] (the CPC). She was, in the said application, calling
upon the executing court to investigate into the legality and validity of the
application for execution on account that, the decree had been satisfied and the
appellant signed a discharge certificate to that effect. In paragraph 4 of the
affidavit in support of the application, the respondent deposed as follows:
4. On 12th July 2006 the objector did comply and
completely discharged her obligation by paying the
Respondent a total of Tshs. 26,385,953.05 to cover the
entire due terminal benefits derived as follows:
employment benefits- Tshs. 19,710,215.40; Accrued
Leave- Tshs 362,597.00; Repatriation benefits-Tshs.
5,030,874.00 and Tanzania Pipelines Pension Scheme-
Tshs 1,282,266. 65. The said Discharge Certificate is
attached hereto and marked Annexure TZM-1
In opposing the application, the appellant filed a counter affidavit and in
paragraph 5 thereof stated as follows:
5. That as regards the contents of paragraph 4 of the

affidavit, the respondent notes that he was paid the
amount stated, but that he was misled to sign the referred
discharge certificate.
In its decision dated 31st August, 2008 (“the initial decision”), the executing
court, while in agreement with the respondent that, the appellant was not justified
to make a further claim after receiving TZS 26,385,953.05 and signing a
discharge certificate, it struck out the application for execution for being
misconceived. Displeased, the appellant preferred an appeal to the High Court
vide Civil Appeal No. 147 of 2008 attacking the findings of the executing court
on both the effect of the receipt of the amount as aforesaid and striking out of
the execution proceedings for being misconceived. In its judgment (Shangwa, J)
which shall henceforward be referred as “the judgment on appeal”, the High
Court observed on the first issue as follows:
In my opinion there was nothing wrong for the Appellant
Decree holder to file an Application for execution of the
decree arising from the decision of the Conciliation board
of Morogoro for further claims in respect of his unpaid
275
terminal benefits to the tune of USD 83,750 which he
wanted to enforce through Miscellaneous Employment
Cause No. 11 of 2008 by attachment and sale of the
Respondent's two houses on plot No. 179 Toure Drive,
Masaki, in Dar es Salaam and on plot No. 423 Mhando
Street, Masaki in Dar es salaam. Furthermore, I am of the
opinion that notwithstanding the fact that the Appellant
had signed a discharge certificate prepared by the
respondent, yet still the choice was his to make an
Application for execution of the decree for the purpose of
realizing his unpaid terminal benefits from the
Respondent which he claims to be USD 83,750. His
application was supposed to be heard by the District Court
of Morogoro and determined on merit.
On the second issue, the High Court observed in the first place, that, it was wrong
for the executing court to strike out the Miscellaneous Employment Cause No.
11 of 2008 (“the objection proceedings”) while dealing with the Miscellaneous
Employment Cause No. 14/2008 ('the execution proceedings") as the two
proceedings were different and distinct. In the second place, it was observed that,
the respondent being a judgment debtor, was incompetent to bring the objection
proceedings. It finally quashed the initial decision and ordered that the execution
proceedings be heard on merit.
In pursuance of the direction as aforesaid, the parties were heard by the executing
court upon the respondent filing a counter affidavit wherein she contested the
application on two grounds. First, the decision of the Board was duly satisfied
as per the discharge certificate. Second, the amount claimed in the application
was beyond the decision of the Board. In its ruling (“the decision on execution”),
the executing court having considered the rival submissions, held that since the
issue of payment of subsistence allowance was not expressly decided by the
Board, it was a labour dispute which should have been dealt with by the Board
itself. In reaching to such a conclusion, the executing court observed as follows:
The Decision of the conciliation Board was general that
the Decree holder was entitled to be paid all terminal
benefits of the voluntary retired employee. If at all the
Decree holder found that the Judgment holder
miscalculated his benefits, the right procedure was to go
276
back to the Conciliation Board to present his claims and
not coming to this court to make execution of the order
which was not specifically given. By entertaining this
claim will lead this court into the calculation of payments
which are mainly done by Conciliatory Board in all cases
of this kind. In other words this court has no jurisdiction
of entertaining labour cases and if this court will proceed
to determine on retirement it will be stepping into the
shoes of Conciliatory Board which actually has the
jurisdiction on cases of this kind.
Being aggrieved by the decision, the appellant applied for revision to the High
Court vide Civil Revision No. 40 of 2012. In its ruling (“the decision on
revision”), the High Court (Sheikh, J.) was guided by one issue namely; whether
in the absence of a specific order by the Conciliation Board an executing court
has the jurisdiction (a) to determine whether a decree holder is entitled to
repatriation costs and subsistence allowance and (b) to compute the amount
payable as subsistence allowance and repatriation costs.
Having addressed the issue, the High Court Judge concurred with the executing
magistrate that, since it was not express in the decision of the Board that, the
appellant was entitled subsistence allowance and/ or repatriation costs, how
much and to what extent, the claim sought did not fall within the jurisdiction of
an executing court. It thus dismissed the application and remarked that, the
appellant was at liberty to refer the matter to the Board.
Once again aggrieved, the appellant has instituted this appeal faulting the
decision of the High Court on revision on the following grounds. One, in holding
that the executing court has no power to investigate on questions arising from
execution, discharge and satisfaction of the decree. Two, in recognizing the
alleged satisfaction of the decree despite not being certified by the executing
court. Three, in holding that the calculation of the amount due to the appellant
should be submitted to the Board notwithstanding that it was defunct and in any
case, it had already concluded the matter. Four, in not considering the fact that
at the time when the Board was making its decision, the claims as to subsistence
allowance was not due. Five, in not holding that the executing court in its
decision on execution departed from the direction of the High Court in the
decision on appeal.
277
When the appeal was called on for hearing before us, the appellant and
respondent were represented by Messrs. Audax Vedasto Kahendaguza and
Cornelius Kariwa, learned advocates, respectively. As the law requires, both
counsel had, before the hearing, filed written submissions. Each of the counsel
in his oral address, adopted his submissions as part of his oral arguments. We
sincerely appreciate for the counsel's submissions which have been instrumental
in composing this judgment.
We shall start our discussion with the last ground which seeks to criticize the
High Court in not holding that, the decision of the executing court dismissing
the appeal for want of jurisdiction was contradictory in effect with the decision
of the High Court on appeal.
Submitting on this issue, Mr. Kahendaguza began by drawing the attention of
the Court that, the issue of jurisdiction of the executing court to determine
whether the appellant was to be paid subsistence allowance, was decided in the
initial decision in favour of the respondent. In the decision on appeal, he
submitted further, the High Court held that the issue was within the jurisdiction
of the executing court and directed the same to hear and determine the
application on merit. He submitted therefore that, in reopening the issue and
dismissing the application for execution on the same ground of jurisdiction, the
executing court committed a fatal error which should have not been confirmed
by the same court on revision as the High Court was already functus officio.
There was no comment from Mr. Kariwa on this issue.
We have taken time to scrutinize the relevant decisions and proceedings and we
do not agree with Mr. Kahendaguza that, the concurrent decisions of the
executing court and the High Court on revision are in any way contradictory to
the decision of the High Court on appeal. As we have noted elsewhere in this
judgment, the executing court did not, in the initial decision, resolve the issue of
jurisdiction of the executing court to enforce the decision of the Board. It only
addressed the issue of whether the appellant having received what was termed
as the entire terminal benefits and signed the discharge certificate, was not barred
from commencing execution proceedings. The executing court established at
page 50 of the record as follows:
Given the fact that he plainly submitted not to have any
problem with the computation in the Discharge
Certificate, I partly agree with him that section 123 of the
Evidence Act [Cap. 6 R.E. 2002] is not applicable but on
278
the other hand, I also do partly agree with the Objector
that there is no Justification as to why the Respondent
should be allowed to make further claims. What he was
paid was employment benefits which was in conformity
to the decision of the Conciliation Board.
The decision of the High Court on appeal as we have already noted earlier on,
was based on two issues namely; One, whether upon receipt of the terminal
benefits and signing a discharge certificate, the appellant was allowed to
commence an application for execution. Two, whether the objection proceedings
were properly before the executing court. The reversal of the finding that the
application for execution was misconceived, was based on the proposition that,
the appellant was not barred from filing an application for execution for mere
reason that he had received what was termed as the entire terminal benefits and
signed the discharge certificate. In view of the foregoing discussion therefore,
the fifth ground has no merit.
We shall now direct our mind on the second ground as to recognition of
satisfaction of a decree which was not certified by the executing court. Mr.
Kahendaguza's contention on this issue is that; since the payment of the terminal
benefits by the respondent reflected in the certificate of discharge was made out
of court, it was wrong for the High Court to recognize it without complying with
the mandatory requirement of Order XXI rules (1), (2) and (3) of the CPC. He
submitted further that, since the executing court has exclusive jurisdiction under
Order XXI rule (3) to certify the same, it was wrong for the High Court to direct
that the issue be referred to the Board. In any event, he submitted, the Board
having made a conclusive decision, was functus officio to deal with the same.
On his part, Mr. Kariwa urged the Court to dismiss this ground for the reason of
being extraneous the decision of the High Court on revision. The basis of the
decision of the High Court, he submitted, was not that the decree had been
satisfied but that the claim was not in the decree. We entirely agree with him
because the application for execution, in our careful reading, does not suggest
that the executing court recognized the alleged satisfaction of the decree by the
Board. Quite apart, the executing court declined to entertain the application on
merit for want of jurisdiction. In our considered view therefore, the second
ground of appeal is misplaced. It is thus dismissed.
279
We now proceed with the 1st, 3rd and 4th grounds of appeal which we shall
consider them together under the proposition that, the executing court had no
jurisdiction to entertain the application. Mr. Kahendaguza in the first place
associated the jurisdiction of the executing court with section 38(1) of the CPC
which bars questions relating to execution, discharge or satisfaction of the decree
from being dealt with by a separate suit and confers exclusive jurisdiction
thereon to the executing court. He submitted therefore that, since whether the
claim under discussion was covered by the decree is a question which relates to
execution, discharge and satisfaction of the decree, it was within the parameters
of the respective provision and as such under subsection (2) of section 38 of the
CPC, the executing court should have treated the execution proceedings as a suit
and receive evidence if it was necessary in giving effect to the decree.
It was further submitted for the appellant that, since the nature of the claim as
provided for under section of 59 of the repealed Employment Act [Cap. 366 R.E.
2002] is such that it could not be known until the judgment debtor paid
repatriation costs, it was wrong for the High Court to hold that, the executing
court had no jurisdiction to make computation of the same. The Board, he
submitted further, having made a final and conclusive decision that the appellant
was entitled of all terminal benefits, it was functus officio to recompose itself
and address the computation of subsistence allowance.
Submitting in refutation, Mr. Kariwa contended in the first place that, section 38
of the CPC was inapplicable. In his view, the applicability of the said provision
is subject to existence of objection as to limitation and jurisdiction. He submitted
therefore that, since the law as it stood during that time excluded jurisdiction of
ordinary courts in causes of action founded on labour complaints, there was no
material errors on the part of the executing court.
On whether the matter could be remitted to the Board which was already defunct,
it was his submission that, by the express provision of the Employment and
Labour Relations Act [Act No. 6 of 2004] which is now in force (the ELRA),
what would have been done by the Board can now be done by the Commissioner
For Mediation and Arbitration (the CMA) which is the successor of the Board.
He did not agree with the counsel for the appellant that, the same is functus
officio since the issue involved is a mere correction of clerical errors.
On whether the appellant was covered by the provision of section 59 of the
repealed Employment Act, Mr. Kariwa submitted that the said provision applies
280
in normal incidences of termination and not the instant one. He prayed therefore
that; the appeal be dismissed with costs.
We have given the rival submissions on this issue due consideration and it is
appropriate to consider who is right. Before doing so, a brief exposition of the
laws which governed the matter is necessary. As we noted above, the dispute at
hand emanated from a decision by the respondent to summarily dismiss the
appellant for absence without leave. Under section 20 of the SEA, an employer
could only summarily dismiss an employee on account of breaches of
Disciplinary Code and subject to the conditions set out in the Act. A person
aggrieved from such decision, would refer the matter to the Board under section
24(1) of the SEA and on further dissatisfaction, to the Minister under section 27
of the same Act. The decision of the Board or the Minister was final and
conclusive, binding to the parties to the reference and could be enforced in any
court of competent jurisdiction as if it were a decree. Subsection (2) of section
28 provided as follows:
(2) In addition to its powers to execute any decision
which requires the refund of any wages deducted or,
expressly or by implication, the payment of any sum
to an employee where a dismissal is ordered to take
effect as termination of employment a court in which it
is sought to enforce a decision of the Minster or a Board
may make and enforce such orders as are necessary for
specific performance of any decision for the
reengagement or re-instatement of any employee(
notwithstanding that the court would not have power
apart from this subsection to make or enforce such orders
and may award damages for failure of the employee to
carry out any such decision as if he has dismissed the
employee concerned wrongfully, and, if Part IV of this
Act is in operation in relation to the employee concerned,
such damages shall include statutory compensation
provided for in that Part). (Emphasis ours)
Back to the fact in issue, the decision of the executing court as confirmed by the
High Court on revision was based on the proposition that, the amount of
subsistence allowance sought to be realized was not expressly decreed in the
decision of the Board. In principle, we agree with Mr. Kariwa that, an executing
281
court has no jurisdiction to execute what is beyond the decree. We also agree
with him that, the claim as to subsistence allowance was not express in the
decision of the Board. What was express in the said decision was that, the
appellant should be paid all his terminal benefits in accordance with the law and
voluntary agreement relevant to his services. What amounts to the said terminal
benefits, the decision of the Board was silent. That being a case, we do not think
that, the High Court Judge was right in holding that the application for execution
was beyond the decree for the mere reason that, the claim was not express. We
have three reasons to rationalize our decision.
First, under section 28 (2) of the SEA, the power of the executing court to
execute the payment of money where, like in the instant case, a dismissal is
ordered to take effect as termination of employment, is not limited to an express
decision. It extends to decisions which require such payment by implication. The
Board, in its decision, decreed that the appellant be paid all his terminal benefits
according to the laws and voluntary agreement relating to his employment. It did
not specify items of terminal benefits. Obviously therefore, what should be paid
to the appellant as terminal benefits was implied by law and voluntary
agreement. To give effect to the decree, the executing court was bound to
construe the decree in line with the employment laws and voluntary agreement
and in so doing it could not be said to have gone beyond the terms of the decree.
Second, under section 38(1) of the CPC, Mr. Kahendaguza is correct, the
executing court enjoys exclusive jurisdiction to deal with any questions relating
to execution, discharge and satisfaction of the decree. Where the resolution of
any of the questions requires ascertainment of controversial factual issues, the
executing court is entitled, under section 38(2) of the CPC even to convert
execution proceedings into a suit. In our view, therefore, in so long as the claim
is captured by the decree, whether expressly or constructively, it is within the
power of the executing court to compute the same. Thus, in Karata Ernest and
Others v. The Attorney General, Civil Revision No. 10 of 2010 (unreported), this
Court while considering the provision of section 38(1) of the CPC, observed as
follows:
Although ordinarily the trial court has a duty to determine
the quantum which the judgment debtor is bound to pay
under the decree, where it has left out that question open
for consideration subsequently, the executing court has
282
jurisdiction to determine the quantum under this section
on the issue.
In National Insurance Corporation v. Maligisa Manyangu and 24 Others, Civil
Revision No. 14 of 2017 (unreported), the High Court of Tanzania, Dar es
salaam District Registry (Masabo, J) dealing with a revision arising from, like in
this matter, enforcement of a decision of the Board under the repealed laws,
made the following statement which sounds persuasive to us:
I am also of a settled view that the learned magistrate was
justified in ordering the Applicant to provide a breakdown
of what has been paid so far so as to ascertain the claims
that have been paid and those which remain due. I have
noted that, instead of providing the breakdown, the
Applicant defied the orders of court and has today failed,
neglected to provide the breakdown. From the events
pertaining to this case, provision of the breakdown is also
imperative in preventing any risk of double payment, thus
it is in fact, in the interest of both parties as well as the
court that the claim paid so far be known.
We do not agree with Mr. Kariwa that, by the reason of the nature of the decision
of the Board, it cannot fall under section 59 of the Employment Act. For, under
section 26(1) (b) of the SEA, once the Board or the Minister orders that a
dismissal order takes effect as termination, the employee shall, for the purpose
of terminal benefits, be deemed to have been terminated by payment of wages
in lieu of notice. It provides as follows:
(b) that summary dismissal or proposed
summary dismissal of an employee shall have effect as
termination of employment, the employer shall be
deemed to have terminated the employment of the
employee otherwise than by summary dismissal on the
date of dismissal or suspension (or, if the employee was
not suspended, on the day on which the employer
informed the employee that he proposed to dismiss him
summarily), and the employer shall pay the employee
such sums as would have been due had the
employment been terminated by payment of wages
in lieu of notice and any other payments due on the
283
termination of employment in such a case, less any half
pay paid during a period of suspension. (Emphasis is
ours)
Third, from the application and counter affidavit in opposition to the
application, parties were of consensus that, the terminal benefits awarded in the
decision of the Board included repatriation costs. That is why, the amount of
terminal benefits admitted to have been received by the appellant includes
repatriation costs. Section 59(3) of the repealed Employment Act was very clear
that expenses of repatriation includes:
(b) subsistence expenses or rations during the
period, if any, between the date of termination of the
contract and the date of repatriation.
Since this kind of payment accrues subsequent to the decision and more
particularly after the terminated employee is repatriated, it is a matter of common
sense that it could not be express in the decision. It being part of the terminal
benefits under the law, it was obviously implied in the decision of the Board.
In the final result and for the foregoing reasons therefore, we find the appeal with
merit and we allow it. We accordingly quash and set aside both the decision of
the High Court on revision and the decision of the executing court on execution.
Since under item 8(1) of the Third Schedule to the ELRA read together with
section 103 (1) thereof, any reference concerning a summary dismissal under the
repealed laws should be dealt with as if the same had not been repealed, we remit
the file to the executing court for determination of the application on merit. It
being employment matter, we make no order as to costs.
Appeal allowed
HECTOR SEQUIRAA v. SERENGETI BREWERIES LIMITED

AT DAR ES SALAAM
(LILA, SEHEL, and LEVIRA, JJ.A.)
CIVIL APPLICATION NO. 395/ 18 OF 2019
284
(Application to strike out Notice of Appeal from the decision of the High Court
of Tanzania (Labour Division) at Dar es Salaam, Mipawa, J., dated 2nd June,
2016, in Revision No. 287 of 2015)
Court practice – Applicant makes application to the Court to strike out Notice
of appeal from the decision of the High Court of Tanzania (Labour Division) –
Applicant also filed a Civil Reference in the Court challenging the decision of
the Single Justice granting the respondent extension of time to file notice of
appeal – Whether the making of the two applications amounts to abuse of court
process.
The applicant, an Indian National, was employed by the respondent at the
position of General Manager Human Resource. The respondent terminated his
employment on the ground of failure by the applicant to renew his work permit.
Aggrieved the applicant filed a complaint for unfair termination against the
respondent before the Commission for Mediation and Arbitration for Temeke
(the CMA). The CMA determined the matter in favour of the applicant.
Dissatisfied with the decision of the CMA, the respondent filed in vein Civil
Revision No. 287 of 2015 in the High Court of Tanzania, Labour Division. Still
dissatisfied, the respondent lodged a notice of appeal intending to challenge the
decision of the High Court. Later on, the respondent made two fruitless
applications before the Court for extension of time to serve the applicant with
the copy of the notice of appeal, thus, Civil Application No. 217 of 2016 and
Civil Application No. 469/18 of 2016 respectively. Later on, the applicant
successfully filed Civil Application No. 259 of 2017 seeking for an order striking
out the respondent's notice of appeal for failure to take essential steps.
Dissatisfied, by way of a second bite, the respondent successfully sought for
extension of time to file a notice of appeal vide Civil Application No. 373/18 of
2018. However, on the same date when the respondent lodged a fresh notice of
appeal, the applicant also filed Civil Reference No. 12 of 2019 in the Court
challenging the decision of the Single Justice granting the respondent extension
of time in Civil Application No. 373/18 of 2018 which is yet to be determined
by the Court.
Held: i) The act of lodging two applications calls to be discouraged because it
turns the Court's proceedings to be a game of chances in finding lee ways to
succeed by filing unwarrantable applications.
ii) The law does not allow riding two horses at the same time because it amounts
to an abuse of court process.
285
Application struck out
Cases referred to
(1) Hamis Said Mkuki v. Fatuma Ally, Civil Appeal No. 147 of 2017; and
(2) Harrison Mandali & Others v. The Registered Trustees of the Archdiocese
of Dar es Salaam, Civil Application No. 482/17 of 2017.
Mr. Kiwango, for Applicant

Mr. Mgongolwa, for Respondent
RULING OF THE COURT

Dated 13th November, 2020
LEVIRA, J.A.: The applicant, HECTOR SEQUIRAA is seeking an order of the

Court striking out the notice of appeal lodged by the respondent on 23rd May,
2019 on account that, the respondent has failed to take essential steps in
prosecuting the intended appeal. The application is brought by way of Notice of
Motion made under Rules 89(2) and 91(a) of the Tanzania Court of Appeal
Rules, 2009 (the Rules) and it is supported by the applicant's affidavit. The
application is opposed by the respondent through affidavit in reply duly deposed
by Lucia Minde, Legal Services Director of the respondent.
It is on the record of the application that the applicant, an Indian National, was
employed by the respondent at the position of General Manager Human
Resource since July, 2008. On 10th February, 2009 his work permit expired and
the same was not renewed by the responsible authority. As a result, the
respondent terminated his employment. The applicant was aggrieved and thus
he filed a complaint for unfair termination against the respondent before the
Commission for Mediation and Arbitration for Temeke (the CMA). The CMA
determined the matter in favour of the applicant.
286
Dissatisfied with the decision of the CMA, the respondent filed in vein Civil
Revision No. 287 of 2015 in the High Court of Tanzania, Labour Division (the
High Court). Still dissatisfied, the respondent on 29th June, 2016 lodged a notice
of appeal intending to challenge the decision of the High Court. Subsequently,
the respondent’s counsel wrote a letter to the Registrar of the High Court
requesting for copies of the judgment and proceedings in Revision No. 287 of
2015; the CMA award, proceedings and copies of exhibits which were tendered
in the proceedings before the CMA. On 20th September, 2016 the Registrar
informed the respondent that the requested documents were ready for collection.
The respondent collected the said copies. However, after collection of the said
copies, the respondent made two fruitless applications before the Court for
extension of time to serve the applicant with the copy of the notice of appeal;
these were, Civil Application No. 217 of 2016 and Civil Application No. 469/18
of 2016 respectively.
Following the outcome of those two applications, the applicant on 29th June,
2017 filed Civil Application No. 259 of 2017 seeking for an order striking out
the respondent's notice of appeal for failure to take essential steps. On 1st
November, 2017 the Court granted the said application and the respondent's
notice of appeal was struck out. Immediately thereafter, the respondent filed in
the High Court Misc. Civil Application No. 402 of 2017 seeking extension of
time within which to file a fresh notice of appeal. However, the High Court
declined to grant that application through its ruling delivered on 13th July, 2018.
Dissatisfied, by way of a second bite, on 17th May, 2019, the respondent
successfully sought for extension of time to file a notice of appeal vide Civil
Application No. 373/18 of 2018.
It is also on record that on 22nd May, 2019, the respondent wrote a letter to “the
Judge in Charge of Main Registry of the High Court” requesting to be supplied
with certified copies of Proceedings, Ruling, and Order in respect of Revision
No. 287 of 2015; the Proceedings and Award in CMA/DSM/TEM/157/2011 for
the purposes of preparing a record of appeal. Subsequently, on 23rd May, 2019
the counsel for the respondent filed a notice of appeal with intention to impugn
the decision of the High Court. On account of the foregoing events, it is the
applicant’s contention that 90 days have elapsed and the respondent has not
taken essential steps to institute the intended appeal.
We take note that, on the same date (22nd May, 2019) when the respondent
lodged a fresh notice of appeal, the applicant also filed Civil Reference No. 12
287
of 2019 in the Court challenging the decision of the Single Justice granting the
respondent extension of time in Civil Application No. 373/18 of 2018 which is
yet to be determined by the Court.
We have respectfully considered the grounds of application, parties' affidavits,
written submissions and oral submissions made by the counsel for the parties.
Before examining the grounds of application advanced by the applicant, we find
it instructive first to deliberate on the ground raised by the respondent's counsel
that the instant application was prematurely lodged as there is pending Reference
No. 12 of 2019 within which, the applicant is challenging the decision of the
single Justice extending time to the respondent to lodge a notice of appeal subject
of this application.
According to him, an attempt by the applicant moving the Court to strike out the
notice of appeal is an abuse of Court process because the applicant is riding two
horses at the same time. This is due to the fact that, the applicant rushed to
challenge the decision of the single Justice of the Court granting the respondent
leave to lodge notice of appeal out of time on a date of lodging it through
Reference No. 12 of 2019 which is still pending in Court. He also added that
there was no way the respondent could prepare the record of appeal without
accompanying the notice of appeal and the record of Reference No. 12 of 2019.
That stance by Mr. Mgongolwa was adamantly resisted by Mr. Kiwango, the
learned counsel for the applicant that the respondent ought to have proceeded
instituting the appeal because the said Reference would have no bearing to the
present application. The issue therefore, is whether the present application is
premature.
We think the answer to this issue is not farfetched. The parties are not disputing
the fact that on 23rd May, 2019 the applicant filed to the Court Reference No. 12
of 2019 challenging the decision of the single Justice granting the respondent
with extension of time to lodge notice of appeal. It is also not in dispute that the
said Reference is still pending; and subsequently thereof, the applicant lodged
the present application moving the Court to strike out the notice of appeal. Based
on the circumstances, with all respect, we find no substance in Mr. Kiwango's
invitation that the Reference has no bearing to the application under discussion.
As discerned from the parties' affidavit and their respective submissions, it is
evident that the notice of appeal sought to be struck out in this application is also
a subject of contention in the Reference No. 12 of 2019. While in one hand, in
the said Reference the applicant is attacking the notice of appeal that it was not
288
justifiably lodged as he challenges the decision of the single Justice which
granted the respondent leave to file the same out of time; on the other hand, the
current application implies that, the notice of appeal is properly before the Court
except that essential steps have not been taken by the respondent to institute the
intended appeal. Without deciding, assuming we decide to strike out the notice
of appeal as prayed by the applicant, what will then be the usefulness or fate of
the Reference? Certainly, its determination will become superfluous. Similarly,
to the Reference, if it succeeds, there will be no more pending notice of appeal
subject of the current application and hence, it will render the present application
nugatory. In our considered view, since the application for Reference was filed
before the current application, prudence requires the Reference to be determined
first.
Considering the circumstances, we observe that, the act of the applicant to lodge
this application calls to be discouraged because it turns the Court's proceedings
to be a game of chances in finding lee ways to succeed by filing unwarrantable
applications. We are in agreement with Mr. Mgongolwa that this application was
prematurely lodged and indeed the applicant is riding two horses at the same
time. On this position, we are not travelling in a virgin land but we have found
comfort from our previous decision in Hamis Said Mkuki v. Fatuma Ally, Civil
Appeal No. 147 of 2017 (unreported) at page 33, where we held that the law
does not allow riding two horses at the same time because it amounts to an abuse
of court process. A similar stance was also expressed in the case of Harrison
Mandali & Others v. The Registered Trustees of the Archdiocese of Dar es
Salaam, Civil Application No. 482/17 of 2017 (unreported). Had the applicant
been candid enough, it could have waited for the determination of Civil
Reference No. 12 of 2019 because its outcome has a direct bearing not only to
the present application, but also to the fate of the intended appeal. In the
circumstances, we agree with Mr. Mgongolwa that the applicant ought to have
waited for the outcome of Reference No. 12 of 2019 before filing the current
application.
For the reasons stated above, we find that this application was prematurely filed
and therefore we refrain from dealing with the other grounds raised by the
applicant. Consequently, we strike out the application with no order as to costs
since this is a labour matter.
289
JIMSON SECURITY SERVICE v. JOSEPH MDEGELA
AT IRINGA
(NDIKA, WAMBALI, and SEHEL JJ.A.)
(Appeal from the Ruling and Order of the High Court of Tanzania, Labour
Division at lringa, Matogolo, J., dated 18th October, 2018 in Labour Revision
No. 3 of 2017)
Termination of employment – burden of proof – whether an employer has the
burden of proof that termination was fair.
Disciplinary hearing – formal charge – failure to serve the same – whether
amounts to violation of the law.
The appellant employed the respondent as a Security Supervisor on an indefinite

contract of employment. On 4th July, 2016, the appellant terminated the
respondent’s employment on the ground of prolonged absenteeism. Dissatisfied,
the respondent instituted a claim of unfair termination against the appellant in
the CMA. CMA decided in favour of the respondent. Dissatisfied, the appellant
applied to the High Court of Tanzania, Labour Division seeking revision of the
award. The High Court upheld the CMA's findings and dismissed the
application. Still aggrieved, the appellant has appealed to this Court.
Held: i) It is the employer's burden to prove that there was a valid cause for the
termination, in consonance with section 37 (2) of the Employment and Labour
Relations Act.
ii) The failure to serve any formal charge on the respondent was an egregious
violation of Rule 13 (2) of the Rules.
Appeal dismissed
Cases referred to
290
Statutory provions referred to
Section 37 (2) of the Employment and Labour Relations Act
Mr. Nzowa, for Appellant

Mr. Mwela, for Respondent

Dated 5th May, 2021
NDIKA, J.A.: Central to this appeal is the sum of TZS. 3,500,000.00 awarded
by the Commission for Mediation and Arbitration (“CMA”) and affirmed by the
High Court of Tanzania, Labour Division at Iringa for unfair termination of
employment. It raises a somewhat simple issue: whether that award is justifiable
and maintainable.
The appeal arises as follows. The appellant, Jimson Security Service,
employed the respondent, Joseph Mdegela, as a Security Supervisor on an
indefinite contract of employment commencing 1st August, 2015 at a monthly
salary of TZS. 250,000.00. On 4th July, 2016, the appellant terminated the
respondent’s employment on the ground of prolonged absenteeism. Dissatisfied,
the respondent instituted on 3rd August, 2016 a claim of unfair termination
against the appellant in the CMA. The matter hinged on two issues: first, whether
there was a valid reason for the termination; and secondly, whether the
employment was terminated in accordance with a fair procedure.
In her award dated 3rd February, 2017, the CMA's arbitrator acknowledged that
the respondent was absent from his work station between 5th May, 2016 and 20th
June, 2016 but that his explanation that he was sick was unduly rejected by the
appellant's disciplinary committee mainly because his set of supporting medical
documents was not received and considered. She found that although the
respondent was served with notice to appear before the disciplinary committee,
he was not served by the appellant with any formal charge containing the
allegations against him for him to prepare his defence. This was a violation of
Rule 13 (2) of the Employment and Labour Relations (Code of Good Conduct)
Rules, 2007, Government Notice No. 42 of 2007 ("the Rules"). Besides, the
arbitrator took the view that since the offence allegedly committed by the
respondent would have been his first transgression the appellant had to establish
291
that the said indiscretion was a serious misconduct rendering continued
employment relationship intolerable in terms of Rule 12 of the Rules. The
appellant, it was found, failed to prove that fact. On that basis, the arbitrator
answered the first issue in the negative.
Coming to the second issue, the arbitrator held that the termination was
procedurally unfair. This finding was anchored on two grounds: first, that the
disciplinary committee before which the respondent appeared for hearing was
chaired by DW2 Charles Wambura, who, being a security guard employed by
the appellant, was of an inferior rank to the respondent. This was a violation of
Rule 13 (4) of the Rules requiring such a committee to be chaired by a
sufficiently senior management representative who must not have been involved
in the circumstances giving rise to the dispute. Secondly, that upon the decision
of terminating the respondent's employment being made, he was not reminded
of his right to refer the matter to the relevant appellate authority or the CMA in
terms of Rule 13 (10) of the Rules. In the end, the arbitrator awarded the
respondent a total of TZS. 3,500,000.00 being remuneration for twelve months
(TZS. 3,000,000.00); one month's salary as payment in lieu of notice (TZS.
250,000.00); and one month's salary for his earned annual leave for year 2015/16
(TZS. 250,000.00).
Resenting the above outcome, the appellant applied to the High Court of
Tanzania, Labour Division at Iringa seeking revision of the award on seven
grounds. In its decision dated 18th October, 2018, the High Court (Matogolo, J.)
upheld the CMA's findings and dismissed the application. In particular, the
learned Judge expressed that the respondent had furnished a good explanation
for his absence from duty and that his termination from employment was
procedurally unfair, not least because he was not served with any formal charge
prior to his appearance for hearing before the disciplinary committee. Still
aggrieved, the appellant has appealed to this Court on four grounds, which we
paraphrase as follows:
1. That the learned High Court Judge erred in law in holding
that there was no formal charge served on the respondent.
2. That the learned High Court Judge erred in fact in holding
that the respondent had a good reason for his absence from
work for more than five days.
292
3. That the learned High Court Judge erred in law in holding
that the respondent's employment was terminated without
following proper procedure.
4. That the proceedings before the CMA were a nullity as the
respondent sued a non-existing person.
We have keenly examined the record of appeal and taken account of the
contending submissions of the parties on the sole ground of appeal on record.
The sticking question is rather narrow: whether the learned Judge erred in
fact holding that the respondent had a good reason for his absence from work for
more than five days.
To begin with, we wish to express our agreement with Mr. Mwela's submission
that it was the appellant's burden to prove that there was a valid cause for the
assailed termination. This is in consonance with section 37 (2) of the ELRA,
which stipulates thus:
37. -(1) It shall be unlawful for an employer to
terminate the employment of an employee unfairly.
(2) A termination of employment by an employer is unfair
if the employer fails to prove-
(i) related to the employees conduct, capacity or
compatibility; or
(ii) based on the operational requirements of the employer,
and
(c) that the employment was terminated in accordance
with a fair procedure.
[Emphasis added]
As it was common ground that the respondent was absent from work for fifteen
days, the appellant had to establish at the CMA, among others, that his absence
was without any good cause and that the alleged offence being the respondent's
first transgression was so serious that it attracted termination of his employment.
It was in the evidence of the appellant's two witnesses (DWl Mr. Juram Philip
and DW2 Mr. Charles Wambura) that before the committee the respondent did
293
not produce any medical documents to bolster his claim that his absence was
enforced; that he was attending treatment during his absence from work. The
respondent admitted to have not proffered his set of medical documents to the
committee for its consideration but attributed that situation to the appellant's
failure to serve him with a formal charge so that he could have prepared himself
for the hearing.
Taking a hard look at the facts of the case and the evaluation of the evidence by
the arbitrator and the learned Judge, we are of the firm opinion that the
respondent is not to blame for not presenting to the committee his supporting
documentary exhibits to bolster his side of the story that his non-appearance at
work was an enforced absence. It is undoubted that the disciplinary proceedings
against him were a flawed process even before they commenced; for the
respondent was not served with any formal charge detailing the allegations
levelled against him. As a consequence, when he appeared at the hearing he was
unprepared to present an effective defence and so, he could not proffer
supporting documentary proof. The committee, therefore, decided the matter
without the benefit of looking at the respondent's set of medical documents. In
the premises, we think that the learned Judge was justified to find, as revealed at
page 37 of the record of appeal, that:
Although it was established that the respondent was absent
from duty for such a prolonged period but it was not without
reason. The reason was sickness. But the disciplinary
committee based its decision on that reason of absence from
duty... in my opinion good explanation was given by the
respondent.
The failure to serve any formal charge on the respondent was an egregious
violation of Rule 13 (2) of the Rules. Actually, it was clearly the watershed of
the alarming shortcomings that followed. It drew the rebuke of the learned Judge
as he endorsed the arbitrator's finding, at the same page 37, that:
… as was correctly pointed out by the arbitrator, there was no
formal complaint/accusation served [on] the respondent
before he appeared before the disciplinary committee, even
the letter summoning him to attend does not disclose the
accusation he was required to answer. This, therefore, is
unprocedural because the respondent was not informed of
the accusation against him [beforehand]. He was therefore
294
taken by surprise which is against natural justice. This was
against the law. [Emphasis added]
In the premises, we hold, without any hesitation, that the learned High Court
Judge's finding that the respondent had a prima facie good explanation for his
absence from duty for more than five days was based upon a sound and proper
analysis of the evidence on record. That said, the sole ground of appeal fails.
In conclusion, we find the appeal lacking in merit. It stands dismissed in its
entirety. This being a labour matter, we make no order as to costs.
Appeal dismissed
JOHN BOSCO KAZINDUKI v. THE MINISTER FOR LABOUR &

ANOTHER
AT DAR ES SALAAM
(MROSO, MUNUO, and KAJI, JJ.A.)
(Appeal from the ruling and order of the High Court of Tanzania at Dar es
Salaam) (Manento, J.) dated 16th March, 2000 in Miscellaneous Civil Cause
No. 45 of 1999)
Certiorari – application for an order of certiorari – whether once it was
accepted that the purported decision was no decision at all in law, the High
Court should have issued the order of certiorari to quash and set aside that
purported decision which had no effect of reversing the decision of the
Conciliation Board.
The appellant was employed as a teller at one of the Branch of the National Bank
of Commerce in Dar es Salaam. He was summarily dismissed on ground of
dishonest. The applicant did not accept the dismissal from employment and
challenged it by making a reference to the Conciliation Board which ordered that
he be re-instated in his employment. Dissatisfied with the order of the Board, the
Bank made a reference to the Minister for Labour and Youth Development. The
decision which appeared to have been made by the Minister for Labour, was
given by one Mohamed Seif Khatibu (MB) reversing the decision of the
295
Conciliation Board and ordered that the appellant be dismissed. Following the
order of dismissal, the appellant unsuccessfully applied to the High Court for the
order of certiorari, hence, this appeal.
Held: i) Where, the person who decided the reference to the Minister was not
the Minister responsible for Labour matters or his delegate, then the purported
decision is not the decision of the Minister. It amounts to have no decision at all
on the reference. It was null and void.
ii) Once it is accepted that the purported decision was no decision at all in law,
it would follow that the High Court should have issued the order of certiorari to
quash and set aside that purported decision which had no effect of reversing the
decision of the Conciliation Board. It also means that the employer’s reference
to the Minister is yet to be decided by the Minister responsible for labour matters.
Proceedings quashed
Cases referred to
Mr. Mgare, for Appellant

Ms. Otaru, State Attorney, for Respondent
Dated 10th May 2007
MROSO, J.A.: This is an appeal against a decision of the High Court, Manento,
J., as he then was, dismissing with costs an application for the order of certiorari
which was made to the High Court by the appellant.
Following from the decision of the High Court the appellant sought to challenge
it in this Court. He, therefore, filed three substantive grounds of appeal. In the
first ground of appeal it is contended that the High Court should have granted
the order of certiorari because the person who decided a reference against a
decision of a Conciliation Board was not the Minister for Labour as he should
296
have been. In the second ground of appeal the complaint is that the High Court
in refusing to issue the order of certiorari had failed to exercise its discretion
judiciously. Finally, in the third ground of appeal the grievance is that the High
Court judge in deciding against the application for issuance of the order of
certiorari departed from the grounds advanced by the appellant in his statement
to court and, instead, “invented his own grounds” to which the appellant was not
given opportunity to be heard. For a better appreciation of the general tenor of
the appeal we intend to give a background to it.
The appellant was in 1996 employed as a teller at the Kichwele Branch of the
National Bank of Commerce in Dar es Salaam. A person from Sonia Industries
Limited brought to the bank Tshs. 1,435,100/= to be deposited into a company
account. That amount of money was shown on a deposit slip. The appellant
attended the customer and after being satisfied that the amount to be deposited
was correct ticked on the deposit slip and took the money into his custody.
Subsequently, the appellant prepared another deposit slip relating to the money
but this later slip showed that the total amount received from the customer and
banked was Tshs. 1,335,100/=. He then destroyed the original deposit slip. It is
obvious that the pay-in- slip prepared by the appellant showed an amount which
was Tshs. 100,000/= less than the amount the customer had deposited. A few
days later the customer somehow got to know of what the appellant had done
and lodged a complaint to the bank management.
The bank management not only made the appellant refund the amount of Tshs.
100,000/= but they also took disciplinary action under the Security of
Employment Act, 1964 by dismissing him summarily. The applicant did not
accept the dismissal from employment and challenged it by making a reference
to the Conciliation Board which ordered that he be re-instated in his
employment.
With the quashing of the employer’s decision by the Conciliation Board, the
Bank made a reference to the Minister for Labour and Youth Development.
On 23rd May, 1998 a decision which appeared to have been made by the Minister
for Labour, was given by one Mohamed Seif Khatibu (MB) in a document with
reference number KZ/U.10/RF/7451/4. He reversed the decision of the
Conciliation Board and ordered that the appellant be dismissed because he had
failed to report that there was short remittance of cash from a customer and that
there was need for high integrity in a Bank.
297
Following the order of dismissal, the appellant applied to the High Court for the
order of certiorari as already mentioned in this judgment. One of the complaints
in the appellant’s affidavit to the High Court in support of the application was
that Mohamed Seif Khatibu who purported to decide on the respondent’s
reference to the Minister for Labour against the decision of the Conciliation
Board was not then the Minister for Labour and was not, therefore, competent to
order for the appellant’s dismissal.
We think that Mr. Mgare’s arguments and submission have weighty substance.
The reference to the Minister responsible for labour matters could only be
decided either by the Minister himself or by his delegate who would be the
Labour Commissioner, if the Minister delegated that particular function to the
Labour Commissioner. Since the then minister responsible for Labour, late
Kinyondo, was such Minister until on 27th May, 1998, it is highly unlikely that
there could have been an acting Minister for Labour four days earlier while the
substantive holder of that office still existed and was in the country. If such an
unlikely thing was the case, it was incumbent on the respondent to produce clear
evidence before the High Court. That was not done.
It is noted that although the issue about Mr. Khatibu not being Minister for
Labour on 23/05/1998 had been raised by the appellant both in his statement and
affidavit before the High Court, the learned judge before whom the application
for Certiorari was being heard conveniently omitted to discuss it. We think that
issue was critical and decisive in the application before the High Court.
If, as now appears to be the case, the person who decided the reference to the
Minister was not the Minister responsible for Labour matters or his delegate,
then the purported decision was not the decision of the Minister. It was no
decision at all on the reference. It was null and void.
Once it is accepted that the purported decision was no decision at all in law, it
would follow that the High Court should have issued the order of certiorari to
quash and set aside that purported decision which had no effect of reversing the
decision of the Conciliation Board. It also means, of course, that the employer’s
reference to the Minister is yet to be decided by the Minister responsible for
Labour matters.
The High Court decision was given on the basis that the Minister for Labour had
decided the reference and that on the merits as the learned judge saw them, there
were no grounds for issuing the order sought by the appellant. Since the judge
298
erred in believing that the Minister had decided the reference, the appropriate
step to be taken by this Court is to quash and set aside both purported Minister’s
decision on the reference and the High Court ruling. We so order. The other
grounds of appeal depend on the finding on the first ground of appeal which we
have just disposed of, it is now idle to discuss them. The appellant to have his
costs.
Proceedings quashed
JOSEPH DAUDI NDUNGURU v. TWIGA BANCORP LIMITED

AT DAR ES SALAAM
(MKUYE, LEVIRA, and RUMANYIKA, JJ.A.)
(Appeal from the judgment and Decree of the High Court of Tanzania, Labour
Division, at Dar es Salaam, Nyerere, J., dated 18th June, 2018, in Revision No.
373 of 2016)
Appeal – records of appeal – incomplete record of appeal – whether appellant
may be allowed to file a supplementary record of appeal under the spirit of
overriding objective principle.
The appellant was employed by the respondent. However, he entered in a labour
dispute with the respondent on the allegation of negligence and gross
misconduct, hence, termination of his employment. Aggrieved by the
termination, he filed a labour complaint with the Commission for Mediation and
Arbitration, suing the respondent for unfair termination. Upon hearing of the
parties, the CMA gave its award in favour of the appellant. Dissatisfied with the
award, the respondent successfully appealed to the High Court. In its decision,
the High Court found that the appellant's termination was justifiable under the
law. As a result, the appeal was allowed, the CMA award was quashed and set
aside. The appellant was aggrieved by the decision of the High Court and has
filed appeal in this Court. Before hearing the respondent raised a preliminary
point of law on the ground that, the record of appeal is incomplete.
299
Held: The law is now settled that whenever a record of appeal is incomplete, the
party may be accorded an opportunity to file a supplementary record of appeal
under the spirit of overriding objective principle.
Preliminary objection overruled
Cases referred to
(1) Gurmit Singh v. Meet Singh & Another, Civil Appeal No. 256 of 2018
Statutory provisios referred to

(1) Section 57 of the Labour Institutions Act, [Cap 300 R.E. 2019]
Mr. Ndunguru, for Appellant

RULING OF THE COURT

Dated 21st April, 2022
LEVIRA, J.A.: This ruling is in respect of preliminary matters raised at the

hearing of the appeal by the counsel for the respondent one Innocent Felix Mushi
after obtaining leave of the Court; namely, first, that the appeal was filed in
contravention of section 57 of the Labour Institutions Act, [Cap 300 R.E. 2019]
(LIA), that the grounds of appeal presented before the Court are on points of
facts instead of law. Second, the TBCL Credit Policy, 2011 (the respondent1s
Credit Policy) which was tendered during trial is missing from the record of
appeal. Mr. Amon Ndunguru, also learned counsel appeared for the appellant at
the hearing of this appeal.
Before we deal with the above matters, we find it pertinent to provide albeit
briefly the background of the current appeal. The appellant, Joseph Daudi
Ndunguru was employed by the respondent, Twiga Bancorp Limited as a Credit
Officer and later was promoted to a post of Acting Chief Executive Officer.
However, he entered in a labour dispute with his employer on the allegation of
negligence and gross misconduct. Therefore, his employment was terminated.
Aggrieved by the termination, he filed a labour complaint with the Commission
for Mediation and Arbitration (the CMA) vide Labour Complaint No.
300
CMA/DSM/KIN/352/15/662 suing his employer for unfair termination. Upon
hearing of the parties, the CMA gave its award in favour of the appellant.
The respondent was not satisfied with that award and thus it successfully
appealed to the High Court. In its decision, the High Court found that the
appellant's termination was justifiable under the law. As a result, the appeal was
allowed, the CMA award was quashed and set aside. The appellant was
aggrieved by the decision of the High Court and has filed in this Court three
grounds of appeal, subject of the objection and current ruling as follows:
1. That in the absence of proof of any loss, the learned
Honourable Judge erred in law and fact in holding that the
appellant committed gross negligence amounting to gross
misconduct.
2. That in the absence of evidence as to the status of the property
known as Plot No. 154 Block 4 Mbweni Mpiji, Kinondoni
Municipality, Dar es Salaam held under certificate of title No.
65386, the learned Judge erred on the law and in fact in
holding that the appellant committed the misconduct of gross
negligence, hence a valid reason for termination.
3. That as the Commission for Mediation and Arbitration had
found that the reason for termination was unfair, the
honourable Judge erred on law in faulting the Commission's
order for reinstatement.
Having heard submissions by both sides, we think, the main issue for our
determination will base on the second preliminary matter. As intimated above,
the counsel for the respondent brought to our attention that the record of appeal
is incomplete for omission by the appellant to include a copy of respondent's
Credit Policy. The counsel for the appellant conceded to the raised point and
prayed under Rule 99(1) of the Rules to file supplementary record of appeal. We
have thoroughly perused the record of appeal and we agree with the counsel for
the parties that the respondent's Credit Policy which was tendered as exhibit TB2
before the CMA is missing from the record of appeal. We think, the said
document is relevant to the determination of this appeal. Therefore, we accede
to the prayer by the counsel for the appellant though under a different Rule to be
cited shortly.
301
As regards the first issue whether the appellant's grounds of appeal are based on
points of law or not, we do not think that it will be appropriate to determine it
while the record of appeal is incomplete. It is our considered opinion that our
determination of this issue may encroach in determining the appeal itself while
we do not have complete record at hand. We say so because the misconduct
allegedly committed by the appellant is mostly based on non-observance of the
provisions of the respondent's Credit Policy which is omitted from the record of
appeal. The law is now settled that whenever a record of appeal is incomplete,
the appellant may be accorded an opportunity to file a supplementary record of
appeal under the spirit of overriding objective principle. We decided so in a
number of cases, for instance in Gurmit Singh v. Meet Singh & Another, Civil
Appeal No. 256 of 2018 (unreported). The counsel for the parties were at one
that under the circumstances of the matter at hand, the only viable option is to
accord the appellant such opportunity to file supplementary record of appeal. On
our part, we do not have any justifiable reason to decide otherwise.
Consequently, in terms of Rule 96 (7) of the Rules, the appellant is granted leave
to file supplementary record of appeal to include copy of the TBCL Credit Policy
2011 within thirty (30) days from the date of delivery of this Ruling. Hearing of
the appeal shall be on a date to be fixed by the Registrar which will be
communicated to the parties.
JOSEPH KHENANI v. NKASI DISTRIC COUNCIL

AT MBEYA
(MWAMBEGELE, MWANDAMBO, and MASHAKA, JJ.A.,)
(Appeal from the Judgment of the High Court of Tanzania, Labour Division, at
Sumbawanga, Mrango, J., dated 26th October, 2018 in Consolidated Labour
Revisions No. 1 & 2 of 2018)
Interpretation – applicability of section 32A of Public Service Act – whether it
can be applied retrospectively in procedural matters.
302
Jurisdiction – applicability of section 32A of Public Service Act – whether
CMA has jurisdiction to entertain a complaint on terminal benefits before
exhausting the procedure provided for by the Public Service Act.
The appellant was employed by the respondent as a Watchman. He was

promoted to the position of a Ward Executive Officer, a position he held until
when his employment was terminated by the respondent. His termination was
confirmed by the President and ordered that the respondent to pay the appellant
terminal benefits, if any. The appellant was dissatisfied with the respondent’s
calculations. As a result, he filed a complaint before the Commission for
Mediation and Arbitration, claiming for terminal benefits that included
repatriation costs, subsistence allowance and arrears in terms of salary and leave
payment. The claims were partly denied by the respondent. The CMA award was
entered in favour of the appellant. Both parties were aggrieved by the CMA
award thus, they preferred separate applications for revision before the High
Court of Tanzania. The two applications were consolidated and heard together.
The High Court decided in favour of the respondent. Dissatisfied, the appellant
preferred the present appeal. The main issue before the Court was whether the
CMA had jurisdiction to entertain and hear the matter in the light of applicability
of section 32A of the Public Service Act.
Held: i) The procedural amendment to the law cannot be applied retrospectively
if that course of action would occasion injustice on the adversary party.
ii) It is not in the interest of justice to subject a party to the dictates of section
32A of the Public Service Act which was inexistent at the time of filing the
complaint. It follows that the provision was not applicable to the appellant and
hence the authorities cited by the respondent are not applicable as well.
iii) CMA has jurisdiction to entertain and hear the matter filed retrospectively
before it, if doing otherwise would not amount to injustice on the other party.

Cases referred to
(1) Lala Wino v. Karatu District Council, Civil Application No. 132/02 of
2018
(2) Aikaeli Mbowe & Another v. Alex O. Lema, Civil Appeal No. 84 of
2001;
303
(3) The Director of Public Prosecutions v. Jackson Sifael Mtares and 3
Others, Criminal Appeal No. 2 of 2018;
(4) Raymond Costa v. Mantrac Tanzania Limited, Civil Application No.
42/08 of 2018;
(5) Henry Bubinza (the administrator of the estate of the late Mathias
Njile Bubinza v. Agricultural Inputs Trust Fund & 3 Others, Civil
Application No. 114/11 of 2019
(6) Makorongo v. Consigilio [2005] 1 EA 247
(7) Municipality of Mombasa v. Nyali Limited [1963] EA 371
(8) Yew Bon Tew v. Kendaraan Bas Mara [1983] 1 AC 553
(1) Section 32A of Public Service Act
(2) Section 42 (1) and (2) of the Employment and Labour Relations Act
(3) Regulation 40 (1) of the Public Service Regulations, 2003
Mr. Sahwi, for Appellant

Mr. Nyoni, Principal State Attorney, Messrs. Tibaijuka, Mahenge and Tinga,
State Attorneys, for Respondent

Dated 1st March, 2022
MWAMBEGELE, J.A.: The appellant Joseph Khenani was employed by the

respondent Nkasi District Council as a Watchman on 01.07.1996 and later on
01.04.1999, he was promoted to the position of a Ward Executive Officer, a
position he held until 15.09.2008 when he was terminated at his instance. His
termination was confirmed by the President on 16.04.2015 who ordered that the
respondent should pay the appellant terminal benefits, if any.
Following the President's order, the appellant claimed from the
respondent terminal benefits of Tshs. 57,654,107/= through Exh. D7. On
304
09.09.2016 the respondent communicated to the appellant in writing telling him
that his entitlements were calculated basing on Regulation 40 (1) of the Public
Service Regulations, 2003 read together with Regulation 49 (1- 5) of the Public
Service Regulations, 2009. Based on those calculations, the appellant was told
that he was entitled to be paid a total of Tshs. 4,943,056/= only.
The appellant was not happy with the respondent’s calculations. Thus, on
21.09.2016 he filed a complaint before the Commission for Mediation and
Arbitration (the CMA) claiming for terminal benefits that included repatriation
costs, subsistence allowance and arrears in terms of salary and leave payment.
The claims were partly denied by the respondent. As result, the matter went for
hearing. After hearing of both parties, the CMA award was entered in favour of
the appellant that he was entitled to be paid subsistence allowance in addition to
the repatriation expenses from September, 2015 to February 2018 a total of 29
months at a rate of Tshs. 434,000/= per month totaling Tshs. 12,856,000/=. It
was also the finding of the CMA that the appellant was entitled to severance pay
under section 42 (1) of the Employment and Labour Relations Act, Cap. 366 of
the Laws of Tanzania (henceforth the Employment and Labour Relations Act).
In total the respondent was ordered by the CMA to pay the appellant a sum of
Tshs. 18,530,671/=.
Both parties were aggrieved by the CMA award thus, they preferred separate
applications for revision before the High Court of Tanzania, at Sumbawanga.
When the two applications were called on for hearing, they were consolidated
and heard together. Consequently, the High Court decided in favour of the
respondent to the extent that the CMA award was reversed save for the severance
pay. The High Court had the view that, the appellant was not entitled to
repatriation costs and the subsistence allowance on the ground that termination
of his employment was done at his instance. However, the High Court found
that, the appellant was entitled to be paid a severance pay as per section 42 (1)
and (2) of the Employment and Labour Relations Act. The appellant's
application was allowed to that extent. Undeterred, the appellant preferred the
present appeal on several grounds of complaint which, for reasons that will come
to light shortly, we shall not reproduce.
When the appeal was called on for hearing before us, the appellant had the
services of Mr. Benedict Sahwi, learned advocate. Mr. Deodatus Nyoni, learned
Principal State Attorney, Mr. Joseph Tibaijuka, Mr. Stanley Mahenge and Mr.
Julius Tinga, learned State Attorneys, joined forces to represent the respondent.
305
Before we could go into the hearing of the appeal in earnest, there arose a point
of law which, as our practice founded upon prudence has it, we thought it
apposite to first address it before proceeding to hearing of the appeal on its
merits. The point of law raised hinged on jurisdiction; whether the CMA had
jurisdiction to entertain and hear the matter.
Having heard the opposing submissions of the trained minds for the parties to
this appeal, we think the basic issue for our determination is whether the
complaint on terminal benefits before the CMA was prematurely entertained in
contravention of the provisions of section 32A of the Public Service Act.
We start our determination by stating the obvious; that vide Act No. 13 of 2016,
the Public Service Act was amended by adding section 32A immediately after
section 32. This new provision provided for a mandatory requirement to public
servants to exhaust all remedies provided for under the Public Service Act before
seeking remedies provided for in labour laws. For easy reference we take the
liberty to reproduce the section hereunder:
A public servant shalt prior to seeking remedies provided for
in labour laws, exhaust all remedies as provided for under this
Act.
The issue on which the trained minds for the parties have locked horns, as
already stated above, is whether the CMA erred in entertaining and hearing the
complaint on terminal benefits before exhausting the procedure provided for by
the Public Service Act. From the look of things, the provision does not seem to
be ambiguous at all. However, as Mr. Nyoni rightly submitted, the section has
brought about different interpretations by the High Court thereby bringing in two
schools of thought.
We would have gone straight away into the determination of the nagging issue
and address the confusion with a view to settling the dust if it were not for Mr.
Sahwi being emphatic that the provision could not be applicable to the present
case as the moment the matter the subject of this appeal was lodged in the CMA,
it was not in place. Mr. Nyoni conceded that the provision came into force after
the matter was already in the CMA but was quick to submit that the section was
one of retrospective application as it was about procedural law and cited our
decision in Lala Wino v. Karatu District Council, Civil Application No. 132/02
of 2018 to support his argument. We pondered over this issue for some
considerable time during our deliberations. Admittedly, the appellant lodged his
306
complaint over the computations of his terminal benefits in the CMA on
1.09.2016 while Act No. 13 of 2016 which brought the amendment into being
came into force on 18.11.2016; the date of its publication. The issue which
comes to the fore at this juncture is whether the amendment had a retrospective
effect to cover the appellant as Mr. Nyoni would have us hold.
As good luck would have it, we, on several occasions, have discussed elsewhere
on retrospective application of statutes. As such, there is no dearth of decisions
on the point. Apart from Lala Wino (supra) cited to us by Mr. Nyoni, there are a
lot more. They include Freeman Aikaeli Mbowe & Another v. Alex O. Lema,
Civil Appeal No. 84 of 2001, The Director of Public Prosecutions v. Jackson
Sifael Mtares and 3 Others, Criminal Appeal No. 2 of 2018, Raymond Costa v.
Mantrac Tanzania Limited, Civil Application No. 42/08 of 2018, Henry Bubinza
(the administrator of the estate of the late Mathias Njile Bubinza v.
Agricultural Inputs Trust Fund & 3 Others, Civil Application No. 114/11 of
2019 (all unreported) and Makorongo v. Consigilio [2005] 1 EA 247. In the last
case, for instance, we subscribed to the position taken by the erstwhile Court of
Appeal of East Africa in Municipality of Mombasa v. Nyali Limited [1963] EA
371 that:
Whether or not legislation operates retrospectively depends on
the intention of the enacting body as manifested by legislation.
In seeking to ascertain the intention behind the legislation the
Courts are guided by certain rules of construction. One of
these rules is that if the legislation affects substantive rights it
will not be construed to have retrospective operation unless a
clear intention to that effect is manifested; whereas if it affects
procedure only, prima facie it operates retrospectively unless
there is good reason to the contrary. But in the last resort it is
the intention behind the legislation which has to be ascertained
and a rule of construction is only one of the factors to which
regard must be had in order to ascertain that intention.
We were also persuaded by the principle as laid down in the decision of the
Privy Council in Yew Bon Tew v. Kendaraan Bas Mara [1983] 1 AC 553 in the
following terms:
Apart from the provisions of the interpretation of statutes,
there is at common law a prima facie rule of construction that
a statute should not be interpreted retrospectively so as to
307
impair an existing right or obligation unless that result is
unavoidable on the language used. A statute is retrospective if
it takes away or impairs a vested right acquired under existing
laws, or creates a new obligation, or imposes a new duty or
attaches a new disability in regard to events already past.
There is, however, said to be an exception in the case of a
statute which is purely procedural, because no person has a
vested right in any particular course of procedure, but only a
right to prosecute or defend a suit according to the rules for
the conduct of an action for the time being prescribed.
We followed this principle in Makorongo in all the cases cited above.
Flowing from the above, the question that we are called to consider and
determine, we think, is whether the provisions of section 32A of the Public
Service Act took away the vested right of the appellant to refer his complaint to
the CMA which right he had at the time of referring his complaint to the CMA.
We have already observed above that this right would be inhibited by a
subsequent enactment if it so provides expressly or by necessary intendment of
Parliament or if it is purely procedural.
In the case at hand, it is apparent that the appellant filed the complaint before the
CMA when it was quite in order to do so without exhausting the remedies
provided for in the Public Service Act. That was the law then. The requirement
to exhaust all remedies under the Public Service Act came later; when the matter
the subject of this appeal was already in the CMA. Was the enactment meant to
apply retrospectively? We have serious doubt, for, Parliament did not state so
in clear terms. Was the requirement purely procedural? We equally have serious
doubts. Having deliberated on the matter at some considerable length, we think
to hold that the appellant ought to have withdrawn his matter before the CMA
with a view to complying with section 32A of the Public Service will be too
much an overstatement and will, in our considered view, leave justice crying.
The appellant will certainly be prejudiced. We were confronted with an akin
predicament in Raymond Costa (supra). In that case, we hesitated to hold that a
procedural amendment to the law applied retrospective because that course of
action would occasion injustice on the adversary party. We stated:
In the case at hand, we are positive that if the principle stated
above is applied, the respondent will certainly be prejudiced.
In the premises, we find the present case as falling within the
308
scope and purview of the phrase “unless there is good reason
to the contrary" in the case of Consigilio (supra). That is to
say, there exist in the present case good reason not to adhere
to the retrospective application of the procedural amendment
under consideration.
We are minded to take the same standpoint in this appeal. That is, we do find in
the interest of justice to subject the appellant to the dictates of section 32A of the
Public Service Act which was inexistent at the time he filed his complaint. We
therefore find merit in Mr. Sahwi's contention that the provision was not
applicable to the appellant and hence the authorities cited by the respondent are
not applicable as well. We thus hold that the CMA had jurisdiction to entertain
and hear the matter filed by the appellant before it.
The foregoing discussion and verdict disposed of the preliminary points raised
when the matter was called on for hearing. With this finding, we see no dire need
to go into the determination of other arguments of the parties. Much as we agree
with the learned advocate for the appellant and the learned Principal State
Attorney for the respondent that the other issues they addressed needed serious
attention of the Court, but given the finding, the discussion and determination of
them will not only be a mere academic endeavour but also obiter dicta. That
discussion and determination is better, and hereby, reserved for some other
opportune moment.
In the final analysis, we find and hold that the CMA had jurisdiction to entertain
and hear the matter the subject of this appeal. As this a rather old dispute, we
direct the Registrar of the Court to fix the appeal for hearing as soon as
practicable or in the next convenient sessions of the Court, whichever is earlier.
JOSEPH MAGATA v. VODACOM (T) LIMITED

AT DAR ES SALAAM
(NDIKA, KITUSI., and RUMANYIKA., JJ.A.)
309
(Appeal from the ruling and drawn order of the High Court of Tanzania,
Labour Division, at Dar es Salaam, (Wambura, J.) dated 14th June, 2019 in
Miscellaneous Labour Application No. 433 of 2018)
Court practice – dismissal of application for being time barred while the same
had been filed within the time ordered by the same court – whether the advocate
has a duty to assist the court.
The appellant’s employment was terminated the respondent. After termination
of employment, the appellant won the case at the Commission for Mediation and
Arbitration, whose award was however revised by the High Court on application
by the respondent. The appellant applied for a review of that decision of the High
Court. The court struck out the application for incompetency, however, for the
interest of justice, the court allowed the applicant to file proper application in
accordance to provisions of law within seven days. The appellant filed a fresh
application for review, which was before another Judge, but the application was
dismissed by the High Court, on the ground that, it was filed out of time. The
order of dismissal by the High Court is the subject of this appeal.
Held: i) An advocate, in addition of being a professional, is also an officer of
the court and plays a vital role in the administration of justice. An advocate is
therefore expected to assist the Court in an appropriate manner in the
administration of justice.
ii) Playing seek and hide by advocate in court suppresses the truth and causes
justice to suffer.
Appeal allowed
Cases referred to
(1) Mohamed Iqbal v. Esrom M. Maryogo, Civil Application No. 141/01 of
2017
(2) Mohamed Said @ Muddi v. Republic, Criminal Appeal No. 316 of 2014
(3) Charles Mabula v. Republic, Criminal Appeal No. 191 of 2012
310
Mr. Godfrey, for Appellant
Messrs. Lulinga, Mlanga and Elingaya, for Respondent

Dated 24th February, 2022
KITUSI, J.A.: There is a legal battle between the appellant Joseph Magata and
his employer Vodacom (T) Limited, the respondent, on termination of that
employment, the details of which we do not need to go into, at this stage. In a
nutshell, the appellant won the case at the Commission for Mediation and
Arbitration (CMA) whose award was however revised by the High Court on
application by the present respondent.
The appellant applied for a review of that decision of the High Court, but on
6/9/2018 Hon. Nyerere J. made the following order upon satisfying herself that
the application before her was incompetent:
I proceed to struck (sic) out the incompetent application. And
for the interest of justice applicant is granted seven days to
file proper application in accordance to provisions of law. It is
so ordered.
SGD
A.C NYERERE, J
6/9/2018 (Emphasis supplied).
Six days later, the appellant filed a fresh application for review, that is, on
12/09/2018, but the application was dismissed by the High Court, (Wambura J,)
sustaining a preliminary point of objection that had contended that the
application was filed out of time. That order of dismissal is the subject of this
appeal.
First of all, we marvel at the enthusiasm of Mr. Deogratius Godfrey, learned
advocate for the appellant. He lodged a memorandum of appeal consisting of
seven grounds of appeal, written submissions and a long list of authorities. With
respect, given the narrow scope of the issue for our determination, we think the
learned counsel carried a gun to a knife fight, because we are going to dispose
of this appeal on only one ground of appeal. We appreciate the work put on the
case, but the appeal turns on the first ground of appeal which is:
311
1. In determining whether the Review application (Misc.
Labour Application No. 433 of 2018) was time barred the
Honourable Court erred in law by disowning its own order in
Misc. Application No. 463 of 2017 which granted the
appellant (then applicant) the leave to re-file the Review
application within seven (7) days from 5th of September, 2018.
The respondent was represented by Messrs. Lulinga Jonathan Lulinga, Alex
Mianga and Luka Elingaya, all learned advocates. They spoke through Mr.
Lulinga.
Skipping the fine details in the learned submissions by counsel, the issue is
whether the dismissal of the application for being time barred was correct while
the same had been filed within the time ordered by the same court. Wambura, J's
dismissal order concluding that the application was time barred, was based on
the fact that a copy of the order giving the appellant extension of time was not
placed before her.
It is of particular interest to observe that Messrs. Deogratius Godfrey and Lulinga
Jonathan Lulinga, who are representing the parties before us, are the same
advocates who were in court when Nyerere J. ordered extension of time to file a
fresh application for review, and were again in appearance when Wambura J,
dismissed the application on account of time bar. Aware of that fact, we
wondered and invited Mr. Lulinga to explain why it did not occur to him that he
had a duty to tell Wambura J, that he was aware of the existence of the order of
extension of time, but counsel had no plausible explanation. We did so, having
in mind the several pronouncements we have previously made regarding the duty
of advocates to the court. In Mohamed Iqbal v. Esrom M. Maryogo, Civil
Application No. 141/01 of 2017 (unreported), we had this to say:
We must emphasize that an advocate, in addition to being a professional, is also
an officer of the court and plays a vital role in the administration of justice. An
advocate is therefore expected to assist the Court in an appropriate manner in the
administration of justice. Indeed, one of the important characteristics of an
advocate is openness in different ways to share to the court the relevant
information or message which comes to his attention whether from his client or
his colleagues concerning the handling of the case regardless of whether he has
been requested by the court to do so or not.
312
In this case Mr. Lulinga not only prayed seek and hide but he suppressed the
truth and justice suffered for that. In so conducting himself, the learned counsel
contributed to the error that is being addressed in the first ground of appeal,
namely, the court disowning its own order. If the order granting the appellant
extension of time was not exhibited in court, it does not mean it did not exist,
and the counsel for the respondent abdicated his duty by sitting on the fence.
This in our view, is a fit case to remark, as the Court did in Mohamed Said @
Muddi v. Republic, Criminal Appeal No. 316 of 2014 (unreported):
We respectfully think that with a modium of care, this appeal
would have been avoided See also Charles Mabula v.
Republic, Criminal Appeal No. 191 of 2012. How true then is
the saying, more haste, less speed (emphasis ours).
Similarly, in this appeal, if the learned judge had exercised a little bit of patience,
she would have made a more informed decision and avoided this appeal. In our
view, nothing has been achieved in the end, by ignoring the existence of the
court's own order. Thus, the first ground of appeal has merit and on that basis
this appeal is allowed. The order of the High Court dismissing the application
for review is quashed. Let the application be restored and heard on merits. It is
so ordered.
Appeal allowed
JUMA AKIDA SEUCHAGO v. SBC (TANZANIA) LIMITED

AT MBEYA
(MMILLA, MWANGESI, and WAMBALI, JJ.A.)
(Appeal from the Judgment of the High Court of Tanzania at Mbeya,
Ngwembe J., dated 3rd September, 2018, in Labour Revision No. 70 of 2017)
Compensation – subsistence allowance – the manner in which it should be
calculated.
The appellant was an employee of the respondent, in the capacity of accountant
of that company. Later on, he was suspected to have committed an offence in
313
consequence of which he was reported to police and subsequently criminal
proceedings were commenced against him. During the pendency of those
proceedings, the respondent suspended him from work and imposed a condition
that he was required to report at his working station on every Monday until
finality of those proceedings. In the course of the suspension, however, the
appellant faulted to report at work as required, hence, the disciplinary
proceedings were initiated against him. He was found guilty and thereafter
terminated from employment. Aggrieved, he filed the aforesaid complaint before
the CMA. The CMA dismissed the appellant's claims on the ground that,
termination was fair, and that he was not entitled to get repatriation and
subsistence allowances. That decision disgruntled the appellant. He thus filed an
application for Revision in the High Court. The High Court held that the
appellant was entitled to be paid subsistence allowance from the date of
termination to when he was paid repatriation costs. However, the issue became:
how much was he to be paid? After deliberations on the posed issue, the learned
High Court Judge found and held that he was to be paid on the basis of his
monthly wage salary for the period he awaited payment of repatriation costs
which was three months. Once again, that decision dissatisfied him, hence this
appeal to the Court.
Held: (i) It is beyond certainty that section 43 (1) of ELRA contemplated the
payment of subsistence allowance to a person awaiting repatriation; however, it
did not set the rate to be paid.
(ii) It is proper to calculate subsistence allowance on the basis of the monthly
basic wage salary for the period awaited for repatriation.
Appeal dismissed
Cases referred to
(1) Communication and Transport Workers Union of Tanzania COTWU (T)
v. Fortunatus Cheneko, Complaint No. 27 of 2008 (HC)
(2) Tanganyika Instant Coffee Co. Ltd. v. Jawabu W. Mutembei, Revision
No. 210 of 2013
(3) Paul Yustus Nchia v. National Executive Secretary Chama cha
Mapinduzi, Civil Appeal No.85 of 2005
(4) Gaspar Peter v. Mtwara Urban Water Supply Authority (Mtuwasa), Civil
314
(5) Elidhiaha Fadhili v. The Executive Director, Mbeya City Council, Civil

(1) Section 43 (1) of the Employment and Labour Relations Act, [Cap 366
R.E 2019]
Mr. Habibu, for Respondent

Dated 18th June, 2020
MMILLA, JA.: Juma Akida Seuchago (the appellant), is appealing against the
judgment of the High Court of Tanzania (Labour Division) at Mbeya in Labour
Revision No. 70 of 2017. That decision arose from Complaint No.
CMA/MBY/14/2016 at the Commission for Mediation and Arbitration (the
CMA) for Mbeya.
The brief background facts of the case are straight forward. The appellant was
formerly an employee of the SBC (Tanzania) Limited (the respondent), in his
capacity as the accountant of that company. In 2007, his employer suspected
him to have committed an offence in consequence of which he was reported to
police and subsequently criminal proceedings were commenced against him.
During the pendency of those proceedings, the respondent suspended him from
work and imposed a condition that he was required to report at his working
station on every Monday until finality of those proceedings. In the course of the
suspension however, the appellant faulted to report at work for a total of 365
days as a result of which disciplinary proceedings were initiated against him. He
was found guilty and thereafter terminated from employment. Aggrieved, he
filed the aforesaid complaint before the CMA.
The crux of the dispute before the CMA was unfair termination from
employment. He also claimed repatriation and subsistence allowances from the
date of termination to the date of repatriation.
After hearing the complaint, the CMA dismissed the appellant's claims
on account that they were unfounded. It held that the termination was fair, and
that he was not entitled to get repatriation and subsistence allowances. That
315
decision disgruntled the appellant. He thus filed an application for Revision in
the High Court of Tanzania at Mbeya, asking for the following orders:
(1) To call for and examine the records, proceedings and
award dated 9.10.2017 delivered in Labour Dispute No.
CMA/MBY/14/2016 and satisfy itself as to its correctness,
legality or propriety;
(2) Revise that decision; and
(3) Make any other orders or reliefs which the court could
deem fit and just to grant.
Three issues were framed in the course of hearing the application for Revision
as follows:
(1) Whether the termination was unfair;
(2) Whether the applicant was entitled to get repatriation
allowance; and
(3) Whether the applicant was entitled to get subsistence
allowance from the date of termination to the date of
repatriation.
In its decision which was handed down on 3.9.2018, the learned High Court
Judge answered the first and second issues in the negative. He explicitly found
that the termination was fair, also that the appellant had conceded that he was
paid repatriation allowance, therefore disallowed that claim. As regards the third
issue however, the High Court Judge agreed with the appellant's advocate that
the appellant was entitled to be paid subsistence allowance from the date of
termination on 28.12.2015 to 24.3.2016 when he was paid repatriation costs.
However, the issue became: how much was he to be paid? After deliberations on
the posed issue, the learned High Court Judge found and held that he was to be
paid on the basis of his monthly wage salary for the period he awaited payment
of repatriation costs which was three months. Once again, that decision
dissatisfied him, hence this appeal to the Court. The appellant's memorandum of
appeal raised a lone ground as follows:
That the learned Honourable Judge erred in law and facts in
ordering the appellant to be paid monthly salary for each
month he waited to be repatriated by the respondent instead of
ordering that he be paid subsistence allowance from the date
316
of termination to the date when the respondent employer
repatriate him to the place of recruitment, to wit; Moshi.
On the day of the hearing this appeal on 12.6.2020, the appellant appeared in
person and unrepresented; whereas the respondent company enjoyed the services
of Mr. Kamru Habibu, learned advocate.
We have impassively considered the competing arguments of the parties, and
readily note that the High Court's decision that the appellant was entitled to be
paid subsistence allowance from 28.12.2015 to 24.3.2016 during which time he
awaited to be paid repatriation costs raised no strife. The only problem is on the
mode of payment: should it be subsistence allowance which is equivalent to the
monthly basic wage salary as was found by the High Court, or a daily subsistence
expenses for himself and his family members as is being contended by the
appellant?
The situation facing the Court in the present case had been a subject of discussion
in several other cases in the past, including those of Communication and
Transport Workers Union of Tanzania COTWU (T) v. Fortunatus Cheneko,
Complaint No. 27 of 2008 (HC) and Tanganyika Instant Coffee Co. Ltd. v.
Jawabu W. Mutembei, Revision No. 210 of 2013 (HC) in which the focus was
on the provisions of section 43 (1) (c) of the ELRA, 2004. That section provides
that:
43 (1): Where an employee's contract of employment is
terminated at a place other than where the employee was
recruited the employer shall either:
a) N. A.
b) N.A.
c) Pay the employee an allowance for transportation to the
place of recruitment in accordance with subsection (2) and
daily subsistence expenses during the period, if any,
between the date of termination of the contract and the
date of transporting the employee and is family to the place
of recruitment. (The emphasis is added).
It is beyond certainty that the section contemplated the payment of subsistence

allowance to a person awaiting repatriation; however as was observed in the
above cited cases, it did not set the rate to be paid. In the decision subject of this
appeal, the learned Judge of the High Court did not cite that provision, or any
317
case referring to that situation, but we have cause to believe that he was aware
of this situation, which is why he posed the issue: how much should be paid?
The reasoning of the learned High Court judge in Communication and Transport
Workers (supra) on why it should be a monthly basic wage salary instead of a
daily subsistence expenses for such a person and his family members is in our
view appealing. It was stated in that case that:
... Section 43 (10) (c) (sic: 43 (1) (c)) allows for daily
subsistence expenses between the date of termination and the
date of transportation . . . unfortunately the Act did not
prescribe the daily subsistence rate payable. Since (the)
applicants salary is (Tzs.) 370/000/== per month and the
appellant was subsisting on his salary at the place of his work
the daily subsistence allowance can be taken to be the daily
wage calculated on the basis of the monthly salary….
Ipso facto, this was a perfect reasoning, and explains why it was subsequently
incorporated into the ELR (G) R, 2017, emphasis being on Regulation 16 (1)
thereof, which provides that:
The subsistence expenses provided for under section 43 (1) (c)
of the Act shall be quantified to daily basic wage or as may
from time to time be determined by the relevant wage board.
There are several other cases in which the Court directed payment of subsistence
allowance basing on the monthly basic wage salary. In the cases of Paul Yustus
Nchia v. National Executive Secretary Chama cha Mapinduzi, Civil Appeal
No.85 of 2005 and Gaspar Peter v. Mtwara Urban Water Supply Authority
(Mtuwasa), Civil Appeal No. 35 of 2017 (both unreported), the Court endorsed
payment to the claimants on the basis of the monthly basic wage salary. We are
firm that there is justification, and that it was, and still is, good law today.
Admittedly, the case of Elidhiaha Fadhili v. The Executive Director, Mbeya City
Council, Civil Appeal No. 24 of 2014 (unreported) reflects the position being
favoured by the appellant. In that case, while holding that the appellant was
entitled to be paid subsistence allowance up to the date of repatriation as
envisaged by section 43 (1) (c) of the ELRA, nonetheless the Court found that it
was established that the rate was Tzs. 15,000/= instead of Tzs. 30,000/= per day.
In the circumstances of the present case however, the rate of Tzs. 100,000/=
preferred by the appellant for himself and his wife as well as Tzs. 50,000/= for
318
the children per day, was not defended before the CMA because his evidence
shows that he did not say anything in that regard. The record is totally silent -
(see pages 27 to 31 in the Record of Appeal). Similarly, the appellant did not
indicate the number of days he was entitled to be paid, nor did he come up with
any specific amount of money he was entitled to be paid. Worse more, the CMA
did not discuss, nor make any decision on this point. As such, we are constrained
to agree with Mr. Habibu that the present case is distinguishable to Fadhili's
case. We are firm therefore, that the learned High Court Judge in the present case
rightly found that the appellant was to be paid on the basis of the monthly basic
wage salary for the period of three months he awaited to be repatriated.
That said and done, the appeal lacks merit and is henceforth dismissed in its
entirety. We make no order as to costs. Order accordingly.
Appeal dismissed
JUMA BUSIYA v. ZONAL MANAGER, SOUTH TANZANIA

POSTAL
CORPORATION
AT MBEYA
(MUGASHA, GALEBA, and FIKIRINI, JJ.A.)
(Appeal from the Decision of the High Court of Tanzania at Mbeya, Levira, J.,
dated 3rd March, 2016 in Mics. Civil Application No. 20 of 2014)
Court practice – appeal – conditions under which an appeal can be rejected.
Limitation period – overriding objective principle – whether it can be invoked
in cases of time limitation.
The appellant was employed by the respondent, later his employment was
terminated. There was an appeal to the Labour Conciliation Board, but based on,
among other issues, the Minister responsible for labour ordered his reinstatement
under the provisions of the Security of Employment Act 1964. Believing that
319
the order of the Minister was not complied with by the respondent, the appellant
filed Miscellaneous Civil Application in the Resident Magistrates' Court at
Mbeya to enforce the order of the Minister. The RM's Court dismissed the
application. The dismissal order aggrieved the appellant hence appealed to the
High Court, however, he was time limited, hence, this appeal.
Held: i) It is the position of the law that, where the omission to serve a letter on
the party is proved, and the appeal is lodged after sixty (60) days after filing a
notice of appeal, the appeal is time barred.
ii) The omission to serve the letter denied the appellant an opportunity to rely on
the exclusion of any time beyond the sixty (60) days within which an appeal was
to be lodged.
iii) The Principle of Overriding Objective is not the ancient Greek goddess of
universal remedy called Panacea, such that its objective is to fix every kind of
defects and omissions by parties in courts. The principle cannot be invoked
where the proceeding subject of determination of a dispute before the court was
filed or lodged out time. That is so because, where a proceeding is lodged out of
time the court or forum before which it is pending, has no jurisdiction to entertain
the proceeding.
iv) For the court to invoke any powers, not only the Principle of Overriding
Objective, it must first have jurisdiction to preside over the matter. If it does not
have jurisdiction to resolve a dispute or determine a matter before it, the only
jurisdiction or power that court has, is to strike out the proceeding.
Appeal struck out
Cases referred to
(1) Wilfred Lwakatare v. Hamis Kagasheki and Another, Civil Appeal No.
118 of 2011
(2) National Bank of Commerce Limited and Steven R. K. Shiletwa v. Ballast
Construction Company Limited, Civil Appeal No. 72 of 2017
(3) District Executive Director, Kilwa District Council v. Bogeta Engineering
(4) Mandorosi Village Council and Two Others v. Tanzania Breweries
Limited and Four Others, Civil Appeal No. 66 of 2017
(5) Njake Enterprises Limited v. Blue Rock Limited and Another, Civil
320
(2) Section 3A of the Appellate Jurisdiction Act, [Cap 141 R.E.2019]
Mr. Mushokorwa, for Appellant

Mses. Lupodo, Maneno and Tibaijuka, State Attorneys, for Respondent
RULING OF THE COURT

Dated 27th September, 2021
GALEBA, J.A.: Juma Busiya, the appellant had been employed by the
respondent, but was terminated on 10th October 1994. There was an appeal to the
Labour Conciliation Board, but relevant to this ruling is that on 26th February
1996 the Minister responsible for labour ordered his reinstatement under the
provisions of the Security of Employment Act, No. 62 of 1964 (now repealed)
(the SEA). Subsequent to the order of the Minister, there were correspondences
between the parties, but believing that the order of the Minister was not complied
with by the respondent, the appellant filed Miscellaneous Civil Application No.
4 of 1998 in the Resident Magistrates' Court at Mbeya (the RM's court) to
enforce the order of the Minister.
On 25th September 1998, the RM's court (Karua, SRM) (as he then was)
dismissed that application on grounds that, as the respondent had complied with
section 40A (5) of the SEA by paying the appellant statutory compensation, then
the matter before it had no substance. This order aggrieved the appellant but his
efforts and attempts to get any tangible results from the High Court had, on many
occasions and for various reasons, that are however, not relevant to this appeal,
failed all along from 1998 to 2014. Finally, the appellant managed to get to the
High Court in 2014 but, he was already late because, as indicated above his
determination was to fight the decision of the RM's court of 1998.
Following the delay of about 16 years, the appellant filed Miscellaneous Civil
Application No. 20 of 2014 before the High Court, seeking for orders of
extension of time within which to file an appeal challenging the order of the
RM's court. The High Court, (Levira, J.), (as she then was), dismissed that
application with costs on 3rd March 2016. That dismissal aggrieved the appellant
321
and he decided to contest it by lodging the present appeal to the Court,
predicating it on two grounds of appeal, which, following what transpired after
lodging the appeal, we will not be able to determine them in these proceedings.
On that very day, that is on 3rd March 2016 along with lodging a Notice of
Appeal, the appellant wrote and lodged a letter with the Deputy Registrar of the
High Court requesting to be supplied with the certified proceedings, the ruling
and the drawn order in respect of the application which had just been dismissed
by the High Court. That letter is reflected at page 161 of the record of appeal. As
the letter will have a bearing on how this ruling ends, it is, appropriate, we think,
to make one point in relation to it. Although the letter is shown to be copied to
counsel for the respondent at that time, Mwakolo and Company Advocates, the
same bears no stamp or signature or any indication from the said Mwakolo law
firm confirming that indeed the letter was actually served to the law firm. We
will come back to this letter at an appropriate time in this ruling.
The other issue we find to be of profound legal significance is that although the
ruling of the High Court was delivered on 3rd March 2016, the appeal itself was
lodged on 2nd February 2020, without there being a certificate of delay excluding
any period of time between the two dates.
At the hearing of the appeal, the appellant had the services of Mr. Justinian
Mushokorwa learned advocate and the respondent was represented by Ms. Grace
Lupondo assisted by Ms. Leonia Maneno and Joseph Tibaijuka, all learned State
Attorneys.
At the outset, Ms. Lupondo drew our attention to the notice of preliminary
objection that had been lodged under the provisions Rule 107(1) of the Tanzania
Court of Appeal Rules, 2009 (the Rules), which had as well been served on Mr.
Mushokorwa. The point of law raised in the said notice was to the effect that:
The appeal is unmaintainable and bad in law for being
preferred out of the prescribed time contrary to Rule 90(1) and
(3) of the Tanzania Court of Appeal Rules, 2009 as amended.
Before even Ms. Lupondo could argue the objection, Mr. Mushokorwa readily
conceded to the objection, that indeed the appeal was incompetent but was quick
to argue that it should not be struck out as per the law, because it can be saved
by Rule 96(7) of the Rules read together with Section 3A of the Appellate
Jurisdiction Act, [Cap 141 R.E.2019], (the AJA). He prayed for leave to lodge a
322
supplementary record of appeal to include a certificate of delay which is missing
in the record of appeal.
With the advantage of the submissions of counsel, we think the single issue for
our determination is therefore whether the appeal is competent and properly
before the Court.
We will start with the law upon which the objection was predicated, Rule 90(1)
and (3) of the Rules. It provides:
90-(1) Subject to the provisions of rule 128/ an appeal shall
be instituted by lodging in the appropriate registry within
sixty days of the date when the notice of appeal was lodged
with -
(a) a memorandum of appeal in quintuplicate;
(c) security for the costs of the appeal save that where an
application for a copy of the proceedings in the High Court has
been made within thirty days of the date of the decision against
which it is desired to appeal there shall in computing the time
within which the appeal is to be instituted be excluded such
time as may be certified by the Registrar of the High Court as
having been required for the preparation and delivery of that
copy to the appellant.
(2) N/A
to sub-rule (1) unless his application for the copy was in
writing and a copy of it was served on the Respondent.
In our view, the above cited law, particularly sub-Rule (1) of Rule 90 makes it
mandatory for an appeal from the High Court to the Court to be lodged in sixty
(60) days counting from the day that the notice of appeal was lodged. In case the
appellant fails to lodge an appeal within that time frame, like the scenario
obtaining in the present appeal, unless, the letter requesting for the necessary
documents to appeal was lodged with the High Court in thirty (30) days of the
decision as per the proviso to Rule 90(1), and served on the respondent, the
appellant cannot seek to benefit from the exclusion of time beyond sixty (60)
days unless the letter in question is served on the respondent as per Rule 90(3)
323
above. That is the point that Ms. Lupondo was driving home which point we
think is the right interpretation of Rule 90(1) and (3) of the Rules.
In this appeal, the omission to serve the letter denied the appellant an opportunity
to rely on the exclusion of any time beyond the sixty (60) days within which an
appeal was to be lodged. Thus, the appellant was duty bound to lodge an appeal
sixty (60) days counting from the date of lodging the notice of appeal. However,
the appeal was lodged close to 4 years later on 2nd February 2020.
Mr. Mushokorwa nonetheless, implored us to invoke the provisions of Rule
96(7) of the Rules and section 3A of the AJA in order to permit him to lodge a
supplementary record to include the letter which he alleged to be in his
possession. We will start with Rule 96(7) which provides as follows:
(7) Where the case is called on for hearing, the Court is of
opinion that document referred to in rule 96(1) and (2) is
omitted from the record of appeal, it may on its own motion
or upon an informal application grant leave to the appellant to
lodge a supplementary record of appeal.
With respect to Mr. Mushokorwa, the above provision may have come to his
refuge only if the letter subject of this discussion would have been omitted from
the record of appeal. In this case, the letter is in the record, but there is no
evidence that it was ever served on the respondent.
Ordinarily, which is the position we will adopt in a moment, where the omission
to serve a letter on the respondent is proved, and the appeal is lodged after sixty
(60) days after filing a notice of appeal, the appeal is time barred, see this Court’s
decisions in Wilfred Lwakatare v. Hamis Kagasheki and Another, Civil Appeal
No. 118 of 2011 and National Bank of Commerce Limited and Steven R. K.
Shiletwa v. Ballast Construction Company Limited, Civil Appeal No. 72 of 2017
(both unreported).
As for section 3A of the AJA, Mr. Mushokorwa beseeched us to invoke the
Principle of Overriding Objective envisaged in that section so as to save his
appeal. With due respect to learned counsel, we cannot invoke that principle.
The Principle of Overriding Objective is not the ancient Greek goddess of
universal remedy called Panacea, such that its objective is to fix every kind of
defects and omissions by parties in courts. The principle cannot be invoked
where the proceeding subject of determination of a dispute before the court was
filed or lodged out time. That is so because, where a proceeding is lodged out of
324
time the court or forum before which it is pending, has no jurisdiction to entertain
the proceeding. So, for the court to invoke any powers, not only the Principle of
Overriding Objective, it must first have jurisdiction to preside over the matter. If
it does not have jurisdiction to resolve a dispute or determine a matter before it,
the only jurisdiction or power that court has, is to strike out the proceeding. In
the case of District Executive Director, Kilwa District Council v. Bogeta
Engineering Limited, Civil Appeal No. 37 of 2017 (unreported), this Court
observed on the same subject as follows:
On the other hand, before we make the final order, we wish to
state that we have taken note of the prayer by Mr. Baraza that
if we find as we have found that the appeal is time barred we
should invoke the overriding objective principle obtained in
the provisions of section JA (1) and (2) of the AJA to allow
the appeal to be heard on merits. We are also aware that Mr.
Stola did not make any comment on this prayer.
Then the Court continued when refusing the prayer by Mr. Baraza:
The Court cannot have jurisdiction to entertain an appeal
which is time barred and no extension of time has been sought
and granted. We think the issue of time limit is not a
technicality which goes against the just determination of the
case or undermines the application of the overriding objective
principle contained in sections JA (1) and (2) and 38 (1) (a) of
Act No. 8 of 2018.
See also Mandorosi Village Council and Two Others v. Tanzania Breweries
Limited and Four Others, Civil Appeal No. 66 of 2017 and Njake Enterprises
Limited v. Blue Rock Limited and Another, Civil Appeal No. 69 of 2017 (both
unreported) where this Court observed that the principle of overriding objective
cannot be applied blindly to cure every failure to comply with mandatory
provisions of law. That is why we cannot agree with Mr. Mushokorwa that,
although the appeal is time barred, we can invoke the overriding objective to
rescue him from the lawful predicament his client's appeal is liable to suffer.
For the foregoing reasons, we think determination of only one aspect of failure
to serve the letter requesting to be supplied with certified copies of the impugned
ruling, drawn order and the proceedings to the respondent is sufficient to dispose
325
of the appeal. In the event, we uphold the preliminary objection and strike the
appeal with costs.
Appeal struck out
JUSTUS TIHAIRWA v. CHIEF EXECUTIVE OFFICER, TTCL

AT DAR ES SALAAM
(MZIRAY, SEHEL, and KITUSI, JJ.A.)
(An Application for review from the decision of the Court of Appeal of
Tanzania at Dar-es Salaam) (Mugasha, Ndika, and Kwariko, JJ.A., dated 8th
March, 2019 in Civil Appeal No. 251 of 2017)
Review – whether the court has jurisdiction to review its own decision - Rule
66(1) of the Rules.
Review – manifest error on the face of the record – ingredients of an error on
the face of the record - Rule 66 (1) (a) of the Rules.
The applicant was dissatisfied with the decision of the High Court Labour
Division delivered on 2nd March, 2017 in Revision No. 339 of 2015 hence he
filed his appeal to this Court on 4th October, 2017. At the hearing of the appeal,
the Court invited the parties to address it on the propriety of the applicant’s
appeal after it noted that the letter dated 13th March, 2017 requesting to be
supplied with the proceedings of the High Court for appeal purposes was not
served on the respondent.
In his response, the applicant said that he supplied the respondent with all the
requisite documents necessary for appeal purposes and further beseeched the
Court not to be tied by technicalities but rather should determine the appeal on
merit. Whereas, the respondent denied to have been served with that letter. He
thus prayed for the appeal to be struck out. The Court having heard both sides
ruled that the appeal was hopelessly time barred and went on to strike it out.
326
Following the above, the applicant has lodged the present application for review
on the ground that there is an error manifest on the face of the record resulting
in the miscarriage of justice against the applicant.
Held: i) The jurisdiction of the Court in review is limited in scope to the grounds
stated under rule 66 (1) of the Rules.
ii) A manifest error on the face of the record envisaged under Rule 66 (1) (a) of
the Rules must be obvious that strikes in the eyes immediately after looking at
the records and it does not require a long drawn process of reasoning on points
where there may be possibly two opinions. It is an error which is patently clear
and self-evident such that it does not require any extraneous matter to show its
existence. The error must have resulted into miscarriage of justice.
Cases referred to
(1) Fatuma A. Simbambili v. Dokasi Mhina, Civil Appeal No. 84 of 2015;
(2) MIC Tanzania Limited and 3 Others v. The Golden Globe International
Services Limited, Civil Application No. 341/011 of 2017;
(3) Tanganyika Land Agency Limited and 7 Others v. Manohar Lal
Aggrwal, Civil Application No. 17 of 2008;
(4) East Africa Development Bank v. Blueline Enterprises, Civil Application
No 47 of 2010;
(5) Chandrakant Joshubhai Patel vs. Republic [2004] T.L.R. 218;
(6) John Chuwa v. Anthony Ciza [1992] T.L.R. 233; and
(7) Isaack Sebegele v. Tanzania Portland Cement Co. Ltd, Civil Reference
No. 26 of 2004.
(1) Rule 66 (1) of the Court of Appeal of Rules of 2009
327
Applicant, in person
Respondent, Absent
RULING OF THE COURT

SEHEL, J.A.: This is a ruling on the application for review, whereby, the
applicant is inviting this Court to review its decision in Civil Appeal No. 251 of
2017 (Mugasha, J.A, Ndika, J.A, and Kwariko, J.A.) that struck out the
applicant's appeal for being time barred. The application is made under rule 66
(1) of the Court of Appeal of Rules of 2009 (the Rules) and it is supported by an
affidavit of the applicant.
The brief facts giving rise to the present application are such that: the applicant
was dissatisfied with the decision of the High Court Labour Division delivered
on 2nd March, 2017 in Revision No. 339 of 2015 hence he filed his appeal to this
Court on 4th October, 2017. At the hearing of the appeal, the Court invited the
parties to address it on the propriety of the applicant’s appeal after it noted that
the letter dated 13th March, 2017 requesting to be supplied with the proceedings
of the High Court for appeal purposes was not served on the respondent.
In his response, the applicant said that he supplied the respondent with all the
requisite documents necessary for appeal purposes and further beseeched the
Court not to be tied by technicalities but rather should determine the appeal on
merit. Whereas, the respondent denied to have been served with that letter. He
thus prayed for the appeal to be struck out. The Court having heard both sides,
at pages 8 to 9 of its Ruling said:
It is not contentious that after lodging the notice of appeal the
appellant did serve it on the respondent However, the
appellant's letter dated 13/3/ 2017 seeking to be supplied with
the record of the High Court for appeal purposes was not
served on the respondent. This is reflected at page 696 of the
record of appeal. In the result, the appellant cannot be allowed
to rely on the exclusion of days he waited for the Registrar to
supply her with documents for appeal purposes. -See Fatuma
A. Simbambili v. Dokasi Mhina, Civil Appeal No. 84 of 2015
(unreported). The omission to comply with the mandatory
dictates of the law cannot be glossed over as mere technicality
328
as viewed by the appellant because it has adverse impact on
the time limit of filing the appeal since the appellant cannot
rely on the exception under Rule 90 (1) of the Rules. We say
so because since the notice of appeal was filed on 14/3/2017
the appellant ought to have filed the appeal not later than
13/5/2017. As the present appeal was filed on 4/10/2017, the
appeal is hopelessly out of time and we are constrained to
strike it out.
Following the above, the applicant has lodged the present application for review
on the ground that there is an error manifest on the face of the record resulting
in the miscarriage of justice against the applicant. In the Notice of Motion, the
applicant contends that:
1) the Court finding and holding that the applicant's letter

dated 13th March, 2017 was not served to the respondent
is not in harmony with the record of appeal from pages
684 to 696 inclusive which shows that the respective letter
had been served twice to the respondent along with other
necessary documents;
2) when the Court held that the appeal ought to have been
flied not later than 13th March 2017 without due
consideration to the fact that filing of the appeal was
subject to the hearing and final determination of an
application for leave to appeal which was obtained on 2dh
June, 2017 and thereafter the respective court proceedings
were not issued until on 7h August, 2017 as reflected from
pages 687 to 699 inclusive of the record of appeal.
The respondent resisted the application by filing an affidavit in reply. However,

when the application was called on for hearing the respondent did not enter
appearance although he was duly served with the notice of the hearing on 6th
September, 2019 as evidenced in the affidavit of proof of service. On the other
hand, the applicant appeared in person and prayed to proceed with the hearing
of the application as the respondent defaulted appearance.
329
Having been satisfied that the respondent was duly served, we allowed the
applicant to proceed with the hearing in absence of the respondent by virtue of
rule 63 (2) of the Rules.
We wish to preface by reproducing Rule 66 (1) of the Rules that vests
jurisdiction to this Court to review its own decision. It reads as follows:
66 (1) the Court may review its judgment or order, but no
following grounds:
(a) the decision was based on a manifest error on the face of
the record, resulting in the miscarriage of justice; or
(b) a party was wrongly deprived of an opportunity to be
heard;
(c) the court's decision is a nullity; or
(d) the court had no jurisdiction to entertain the case; or
(e) the judgment was procured illegally, or by fraud or
perjury. [emphasis supplied]
In MIC Tanzania Limited and 3 Others v. The Golden Globe International

Services Limited, Civil Application No. 341/011 of 2017 we reiterated that the
jurisdiction of the Court in review is limited in scope to the grounds stated under
rule 66 (1) of the Rules.
The applicant herein pegged his application for review under sub-rule 1 (a) of
rule 66 of the Rules where he alleged that the Ruling of this Court dated 8th
March, 2019 was based on manifest error on the face of the record that resulted
into a miscarriage of justice.
In Tanganyika Land Agency Limited and 7 Others v. Manohar Lal Aggrwal,
Civil Application No. 17 of 2008 (unreported) we explained on the ingredients
of rule 66 (1) (a) thus:
...the ingredients of an operative error are that first, there ought
to be an error; second the error has to be manifest on the face
of the record, and third the error must have resulted in
miscarriage of Justice.
330
What amounts to an error manifest on the face of the record was explained in the
case of East Africa Development Bank v. Blueline Enterprises, Civil Application
No 47 of 2010 (unreported) which quoted with approval the case of Chandrakant
Joshubhai Patel vs. Republic [2004] T.L.R. 218 in which the reasoning in
MULLA, 14th Edition pp. 2335-36 was adopted and the Court stated:
An error apparent on the face of the record must be such that
can be seen by one who runs and reads, that is, an obvious and
patent mistake and not something which can be established by
a long drawn process of reasoning on points on which there
may conceivably be two options. A mere error of law is not a
ground for review under this rule. That a decision is erroneous
in law is not ground for ordering review. It can be said of an
error that is apparent on the face of the record when it is
obvious and self- evident and does not require an elaborate
argument to be established.
Consequently, a manifest error on the face of the record envisaged under Rule
66 (1) (a) of the Rules must be obvious that strikes in the eyes immediately after
looking at the records and it does not require a long drawn process of reasoning
on points where there may be possibly two opinions. It is an error which is
patently clear and self-evident such that it does not require any extraneous matter
to show its existence. The error must have resulted into miscarriage of justice.
We have carefully examined the grounds raised by the applicant in his notice of
motion together with the affidavit and submission in support. We are, however,
unable to see anything akin to a manifest error on the face of the record resulting
in the miscarriage of justice as alleged by the applicant. We say so because the
issue as to whether the letter dated 13th March, 2017 was served to the respondent
or not was adequately dealt and determined by this Court. In our Ruling dated
8th March, 2019 we were satisfied that the letter was not served to the respondent.
With due respect to the applicant, the affidavit of June Byarugaba was supposed
to be filed by him and not the respondent. In the case of John Chuwa v. Anthony
Ciza [1992] T.L.R. 233 in which an application for leave to appeal was filed two
days out of time, the Court emphasized on the need of filing an affidavit of a
material person in order to explain the delay (See also Isaack Sebegele v.
Tanzania Portland Cement Co. Ltd, Civil Reference No. 26 of 2004
(unreported)). It stated:
331
An affidavit of a person so material as the cashier in this
case, has to be filed.
In the application at hand, the applicant made assertion in his affidavit that he
served the letter to one June Byarugaba but he failed to file the affidavit of the
said June Byarugaba to substantiate his assertion that the letter was served to the
respondent. The affidavit of June Byarugaba, a person whose evidence is
material to the matter in dispute was of a paramount importance. Therefore, the
long drawn argument made by the applicant in trying to persuade us to hold
otherwise is nothing other than to ask this Court to sit on appeal against its own
Ruling which this Court is not prepared to entertain as it amounts to an appeal in
disguise. In Lakhamshi Brothers Ltd v. R. Raja & Sons [1966] E.A. 313 it was
held and rightly so, in our considered view, that:
The court had inherent Jurisdiction to recall its judgment in
order to give effect to its manifest intention on to what clearly
would have been the intention of the court had some matter
not been inadvertently omitted, but it would not sit on
appeal against its own judgment in the same proceedings.
(Emphasis added)
The second ground by the applicant was that the Court ought to have considered
that the applicant was seeking leave to appeal to this Court which was obtained
on 20th June, 2017 thus he could not have filed his appeal by 13th May, 2017. We
need not be detained much on this because the statement that "the appellant
ought to have filed the appeal not later than 13/5/2017” was made by passing
as an analogy. It was an obiter dictum not precedential. In any event it did not
cause any injustice to the applicant because the fact still remained that the appeal
was time barred.
At the end, we are of the settled position that, the applicant in this application
has failed to sufficiently demonstrate before us that there is any error apparent
on the face of the record that calls for us to review our own ruling. Consequently,
we are constrained to dismiss the application for want of merit. This being a
labour dispute, we make no order for costs.
KAEMBA KATUMBU v. SHULE YA SEKONDARI
332
MWILAMVYA
AT KIGOMA
(MKUYE, SEHEL, and GALEBA, JJ. A.)
CIVIL APPLICATION NO. 523 OF 2020
(Application for striking out the Notice of Appeal dated on 30th August, 2019
filed against the decision and decree of the High Court (Labour Division) at
Kigoma, Matuma, J., dated 27th August, 2019 in Labour Revision No. 4 of
2018)
Notice of Appeal – Notice of appeal to institute an appeal filed in time and served
on the applicant – Applicant alleges that appeal was not instituted within the
period of 60 days prescribed under Rule 90 (1) of the Rules – Whether
application to strike out notice of appeal is devoid of merit
The applicant successfully sued the respondent before the Commission for
Mediation and Arbitration. The dispute was determined ex-parte against the
respondent. After the respondent became aware of the ex-parte award, she filed
an application before CMA to set it aside. However, the application was
dismissed for want of merit. Aggrieved by dismissal, she unsuccessfully filed an
application for revision, before the High Court. However, the application was
dismissed. Still aggrieved, the respondent lodged a notice of appeal on 30th
August, 2019 and also on the same date she applied to be supplied with the copies
of proceedings, judgment and decree for appeal purposes. The notice of appeal
and the letter were served upon the applicant on 4th September, 2019. After the
applicant was served with the notice of appeal, he waited for almost a year and
having seen that nothing was forth coming, he lodged the present application.
Held: i) In a situation where the intended appellant applies in writing, that is,
writes a letter to the High Court requesting to be supplied with the copies of
proceedings, judgment and decree and such letter was written within thirty (30)
days from the date when the intended impugned decision was delivered, copied
and served to the respondent, the sixty (60) days period for lodging an appeal no
longer starts to run against him/her from the date of lodging the notice of appeal.
ii) The clock will start ticking from the date when the High Court notifies the
intended appellant that the requested copies are ready for collection.
333
iii) Basically, Rule 90 (5) of the Rules, requires the Registrar to ensure that the
copies are ready for collection within ninety (90) days from the date the intended
appellant made his/her application pursuant to Rule 90 (1) of the Rules.
iv) The steps taken by the respondent to pursue her appeal are the essential steps
within the ambit of Rule 89 (3) of the Rules. The steps are; she lodged a notice
of appeal in time, she made an application requesting to be supplied with the
copies for proceedings, judgment and decree to the High Court in writing in time,
she copied and served such application to the respondent in time and she wrote
a reminder letter dated 10th June, 2021 to the High Court.
Cases referred to

Mr. Kassim, for Respondent
RULING OF THE COURT

Dated 16th July, 2021
SEHEL, J.A.: By notice of motion, the applicant seeks for an order of the Court
that the notice of appeal filed by the respondent on 30th August, 2019 against the
judgment and decree in Labour Revision No. 4 of 2018 be struck out. The notice
of motion is predicated on Rule 89 (2) and (3) of the Tanzania Court of Appeal
Rules of 2009 as amended (henceforth “the Rules”) and it was lodged on 21st
July, 2020. It is supported by an affidavit of the applicant himself. The grounds
upon which the application is hinged are stated in the notice of motion, thus:
i) That, the respondent has failed to institute an appeal within
the appointed time.
ii) That, the respondent has not filed any certificate of delay.
334
iii)That, the applicant is a believer in a prominent legal maxim
“justice delayed is justice denied”
iv) That, this court be pleased to order for striking out the
Notice of Appeal filed on 30th August, 2019 with costs.
The respondent, on the other hand, resisted the application by filing an affidavit
in reply.
A brief background leading to this application as could be gathered from the
record is that; the applicant successfully sued the respondent before the
Commission for Mediation and Arbitration for Kigoma (CMA) in a labour
dispute No. CMA/KIG/DISP/31/2018. The dispute was determined ex-parte
against the respondent. After the respondent became aware of the ex-parte
award, she filed an application before CMA to set it aside. However, on 1st May,
2019 the application was dismissed for want of merit.
Aggrieved by such dismissal, she unsuccessfully filed an application for
revision, Labour Revision No. 4 of 2018 before the High Court of Tanzania at
Kigoma. The application was dismissed on 27th August, 2019. Still aggrieved,
the respondent lodged a notice of appeal on 30th August, 2019 and also on the
same date she applied to be supplied with the copies of proceedings, judgment
and decree for appeal purposes. The said notice of appeal and the letter were
served upon the applicant on 4th September, 2019. After the applicant was served
with the notice of appeal, he waited for almost a year and having seen that
nothing was forth coming, he lodged the present application.
At the hearing of the application, the applicant appeared in person. He had no
legal representation. Whereas, the respondent had the services of Mr. Musa
Kassim, learned advocate.
We have dispassionately considered the notice of motion, affidavit in support of
the motion, affidavit in reply and the oral submissions of the parties. Having
done so, we find it apt to set out the undisputed facts. According to paragraphs
5 and 6 of the affidavit and 3 of the affidavit in reply, it is not disputed that the
intended impugned judgment was delivered on 27th August, 2019 and the notice
of appeal was lodged on 30th August, 2019. It was further deposed by the
respondent in paragraph 4 of the affidavit in reply and orally submitted by Mr.
Kassim which submission was not counter-attacked by the applicant that the
respondent applied in writing to the High Court to be supplied with the copies
of proceedings, judgment and decree. That letter is dated 29th August, 2019 and
335
received by the Court on 30th August, 2019. It was further orally submitted and
not counter-attacked by the applicant that the applicant was served with the
notice of appeal and the letter on 4th September, 2019. Much as the steps taken
by the respondent are not disputed by the applicant, the applicant still insisted
that the respondent ought to have reminded the High Court within the stipulated
period of 104 days provided under Rule 90 (5) of the Rules about the supply of
the requested documents needed for filing appeal. Failure to do so, he argued,
the respondent’s notice ought: to be struck out under Rules 89 (2), (3), 90 (1),
(4), (5) and 91 (a) of the Rules. For ease of reference, we take liberty to
reproduce Rule 89 (2) of the Rules that:
Subject to the provisions of sub-rule (1), any other person on
whom a notice of appeal was served or ought to have been
served may at any time, either before or after the institution of
the appeal apply to the Court to strike out the notice of appeal
or the appeal, as the case may be, on the ground that no appeal
lies or that some essential step in the proceedings has not been
taken or has not been taken within the prescribed time.
The import of the above Rule, is that, any person on whom a notice of appeal
has been served, may apply to the Court to have such notice struck out on any of
the three grounds, that, one, no appeal lies, two, some essential steps had not
been taken and three, some essential steps had not been taken within the
prescribed time.
Initially, we have shown herein that the applicant pegged his application that the
appeal was not instituted within the period of 60 days prescribed under Rule 90
(1) of the Rules. That Rule provides:
90 (1) Subject to the provisions of rule 128, an appeal shall be
instituted by lodging in the appropriate registry, within sixty
days of the date when the notice of appeal was lodged with-
(a) memorandum of appeal in quintuplicate;
(c) (c) security for the costs of the appeal,
save that where an application for a copy of the proceedings
in the High Court has been made within thirty days of the date
of the decision against which it is desired to appeal, there
shall, in computing the time within which the appeal is to be
instituted be excluded such time as may be certified by the
336
Registrar of the High Court as having been required for the
preparation and delivery of that copy to the appellant
(2) Not relevant.
to sub-rule {1) unless his application for the copy was in
writing and a copy of it was served on the Respondent
(4) The period limited by sub-rule (1) for the institution
of appeals shall apply to appeals in the exercise of its
bankruptcy jurisdiction.
(5) Subject to the provisions of sub-rule (1), the Registrar shall
ensure a copy of the proceedings is ready for delivery within
ninety (90) days from the date the appellant requested for such
copy and the appellant shall take steps to collect copy upon
being informed by the Registrar to do so/ or within fourteen
(14) days after the expiry of the ninety (90) days. (Emphasis
is added)
We first wish to state from the outset that Rule 90 (4) of the Rules as quoted
above is not relevant to the applicant although he strongly relied upon it. The
said sub-rule deals with bankruptcy matters whereas the applicant's application
arose from a labour dispute.
That said and back to the present application, our interpretation of Rule
90 (1), (3) and (5) of the Rules is that an appeal has to be instituted in the
appropriate registry by lodging a memorandum of appeal in quintuplicate, a
record of appeal in quintuplicate, and security for costs of the appeal within sixty
(60) days from the date when the notice of appeal was lodged. However, where
the intended appellant had applied in writing for the copies of the proceedings,
judgment and decree to the High Court and such application was made within
thirty (30) days (the days are counted from the date of the intended impugned
decision) and the said application had been copied and served on the respondent,
the time taken for the preparation and delivery of the requested copies may be
excluded by a certificate of the Registrar of the High Court.
In other words, in a situation where the intended appellant, like the present
respondent, had applied in writing, that is, had written a letter to the High Court
requesting to be supplied with the copies of proceedings, judgment and decree
and such letter was written within thirty (30) days from the date when the
intended impugned decision was delivered, copied and served to the respondent,
337
the sixty (60) days period for lodging an appeal no longer starts to run against
him/her from the date of lodging the notice of appeal. The clock will start
ticking from the date when the High Court notified the intended appellant that
the requested copies are ready for collection. Basically, Rule 90 (5) of the Rules,
requires the Registrar to ensure that the copies are ready for collection within
ninety (90) days from the date the intended appellant made his/her application
pursuant to Rule 90 (1) of the Rules.
In the instant application, the impugned decision was delivered on 27th August,
2019 and the respondent timely lodged her notice of appeal on 30th August, 2019.
We say it was filed in time because Rule 83 (2) of the Rules requires the notice
of appeal to be filed within thirty (30) days of the date of the decision against
which it is desired to appeal. Having filed the notice of appeal, generally, the
respondent was required to lodge her appeal within 60 days as prescribed by
Rule 90 (1) of the Rules. However, since she did not have all relevant documents
to enable her to lodge the appeal within time, on 30th August, 2019 she wrote a
letter to the High Court requesting to be supplied with the same and served that
letter and notice of appeal on the respondent on 4th September, 2019.
Furthermore, on 10th June, 2021 the respondent reminded the High Court of her
request to be furnished with the documents which she needed in instituting an
appeal. From the foregoing we are not persuaded by the applicant's submission
that the respondent had not taken any essential steps. This is because the steps
which the respondent took are the essential steps within the ambit of Rule 89 (3)
of the Rules. The steps so far she took are; she lodged a notice of appeal in time,
she made an application requesting to be supplied with the copies for
proceedings, judgment and decree to the High Court in writing in time, she
copied and served such application to the respondent in time and she wrote a
reminder letter dated 10th June, 2021 to the High Court.
The applicant contended that the reminder letter was belatedly written as it was
written beyond 104 days prescribed under Rule 90 (5) of the Rule. We
respectfully differ with his submission because sub-rule (5) to Rule 90 of the
Rules does not provide a time limit within which an intended appellant will be
required to write a reminder letter. Similarly, the said sub -rule does not place
any obligation upon the intended appellant where the High Court had failed to
notify him/her that the requested documents are ready for collection and it is
only after the intended appellant had been notified that the copies are ready for
collection, then he/she has fourteen (14) days to collect the same. It is from that
date of notification when the period for lodging appeal starts to run.
338
In this application, the applicant did not bring any evidence/proof that the
respondent was notified by the High Court that the copies were ready for
collection. Neither did he bring any proof that the respondent failed to collect
the same within the period of 14 days prescribed under Rule 90 (5) of the Rules.
There being no proof, we failed to go along with the applicant's argument that
the respondent did not take essential steps. To the contrary, we find that the
respondent has taken all steps which are essential in filing appeal as required by
the law.
Consequently, we find that the applicant's application is devoid of merit. We
therefore dismiss it without costs because it emanated from a labour dispute.
KHADIJA LUMBI v. TANZANIA REVENUE AUTHORITY

AT DAR ES SALAAM
(NDIKA., KITUSI., and RUMANYIKA., JJ.A.)
(Appeal from the ruling and order of the High Court of Tanzania, (Labour
Division) at Dar es Salaam, Muruke, J., dated 5th July, 2019 in Misc. Labour
Application No. 384 of 2019)
Interlocutory order – Order by the judge refusing to grant appellant an order of
temporary injunction against an intended eviction - whether the order was
appealable - section 5(2)(a) of the Appellate Jurisdiction Act, Cap 141
The appellant was employed by the respondent and she was occupying one of
her employer's housing facilities in the City of Dar es Salaam. During the
subsistence of her employment the appellant was charged with and convicted of
a disciplinary offence, but she successfully challenged it at the Commission for
Mediation and Arbitration. The responded was ordered to reinstate the appellant
to which the respondent objected but opted to pay her compensation in lieu of
reinstatement. Pending the satisfaction of the CMA the respondent served the
appellant with a letter requiring her to give vacant possession of the house she
has been occupying. The appellant filed a labour dispute in the High Court,
339
Labour Division resisting the eviction. The Labour Court made orders which are
a subject of this appeal. Before hearing of the appeal the Court invited parties to
address the Court on whether the impugned orders of the learned judge are
appealable.
Held: The order by the learned judge refusing to grant appellant an order of
temporary injunction against the intended eviction, had nothing to do with the
settlement of the award. The order, even if prone to criticism, is not appealable
because it did not bring to finality the issue of the settlement of the award.
Appeal struck out
Cases referred to
(1) Vodacom Tanzania Public Limited Company v. Planetel
Communications Limited, Civil Appeal No. 43 of 2018;
(2) Murtaza Ally Mangungu v. The Returning Officer for Kilwa and 3
(3) Junaco (T) Ltd and Another v. Harel Mallac Tanzania Limited, Civil
Application No. 473/ 16 of 2016 and;
(4) Celestine Samora Manase & 12 Others v. The Tanzania Social Action
Fund and Another, Civil Appeal No. 318 of 2019;
(5) Bazon v. Attrinchan Urban District (1903, 1KB 948).

(1) Section 5(2)(a) of the Appellate Jurisdiction Act, Cap 141
(2) Section 5 (2) (d) of the Appellate Jurisdiction Act, Cap 141
Ms. Chunga, for Respondent

Dated 7th March, 2022
KITUSI, J.A.: Khadija Lumbi, the appellant, was an employee of Tanzania

Revenue Authority, the respondent, by virtue of which she was occupying one
of her employer's housing facilities in the City of Dar es Salaam. Somewhere
during the subsistence of the employment, the appellant was charged with and
340
convicted of a disciplinary offence, but she successfully challenged it at the
Commission for Mediation and Arbitration (CMA) vide an award in
CMA/DSM/KIN - ILA/106/09 dated 7th January, 2010, the CMA ordered the
respondent to reinstate the employee with no loss of entitlements. However, the
respondent stood her ground and opted to pay the appellant salaries for twelve
months instead of reinstating her. Therefore, it drew a cheque for an amount
equal to 12 months salaries.
Since then there have been pending issues regarding the satisfaction of the above
award of the CMA, but when those issues were said to be pending, the
respondent served the appellant with a letter requiring her to give vacant
possession of the house she has been occupying. As a result, the appellant
instituted Miscellaneous Labour Application No. 384 of 2019 resisting the
intended eviction pending satisfaction of the CMA award. Thereafter, the
application was handled in the following style:
Date: 05/07/2019
Coram: Hon. Muruke., J
For Applicant:
Absent For Respondent:
Order: Upon filing application under certificate of urgency,
let order dated 2nd July, 2019 be vacated for interest of Justice.
Sgd ZG. Muruke
JUDGE
05/07/2019
Date: 9/07/2019
Coram: Hon. Z G. Muruke, J
Applicant: Veneranda Kiwori (Advocate) For: Applicant
Respondent
For Respondent: Jacqueline Chunga (Advocate)
Court: Reading affidavit in support of the application and
counter affidavit filed today by respondent, application lacks
merits. Applicant had service tenancy with respondent
Tenancy came to an end by virtue of applicant termination
from employment. Having cases with respondent doesn't bar
respondent from evicting applicant from the house in dispute.
Sgd:
341
Z G. Muruke JUDGE
09/07/2019
Order:
(i) Application is dismissed, for lack of merits.
(ii) For interest of justice and to prevent respondent from using
more money to pay Tambaza Auction Mart and Court Broker
applicant to vacate in house No. 38 TRA Kurasini Quarters on
her own by lsth July 2019 at 4:00 PM and handle the keys to
the Respondent Estate Manager.
(iii) Jacqueline Chunga, respondent's legal counsel to be present
at the handing over of keys to ensure compliance.
Sgd:
Z G. Muruke JUDGE
09/07/2019
The above orders are the essence of this appeal which raises three grounds. The
first and third grounds of appeal challenge the merits of the orders, while the
second ground of appeal raises a procedural issue. Initially, we asked the parties
to address us on the second ground of appeal which faults the High Court judge
for making the impugned orders without hearing the parties.
The appellant, who had earlier filed written submissions prepared by an
advocate, prosecuted the appeal personally at the hearing, by simply adopting
those written submissions and chose not to address us orally. Ms. Jacqueline
Chunga learned advocate, continued to represent the respondent as she had done
before the High Court.
In our deliberations, we start with the Notice of Application in Miscellaneous
Labour Application No. 384 of 2019, which gave rise to the impugned orders. It
sought to move the High Court in the following terms:
1. This court be pleased to issue a temporary injunction
restraining the respondent herein, his agents, servants or any
other person working under him from forcefully evicting the
applicant from the respondent's premises being lawfully
occupied by the applicant by virtue of her reinstated
employment; premises comprised in house No. 38 Block"C"
342
Kurasini Flats pending final satisfaction of the award of the
Commission of Mediation and Arbitration'
The law on the point is provided by section 5 (2) (d) of the Appellate Jurisdiction
Act, Cap 141, (the AJA), that:
No appeal or application for revision shall lie against or be
made in respect of any preliminary or interlocutory decision
or order of the High Court unless such decision or order has
the effect of finally determining the suit.
The issue now for our resolution is whether the impugned orders are preliminary
or interlocutory. The Court has in quite a number of its decisions, developed tests
for determining whether an order is interlocutory or not. To mention a few of
them, they are: - Vodacom Tanzania Public Limited Company v. Planetel
Communications Limited, Civil Appeal No. 43 of 2018, Murtaza Ally Mangungu
v. The Returning Officer for Kilwa and 3 Others, Civil Application No. 80 of
2016, Junaco (T) Ltd and Another v. Harel Mallac Tanzania Limited, Civil
Application No. 473/ 16 of 2016 and; Celestine Samora Manase & 12 Others v.
The Tanzania Social Action Fund and Another, Civil Appeal No. 318 of 2019
(all unreported). The answer to the issue depends on the answer to the question
posed in Bazon v. Attrinchan Urban District (1903, 1KB 948) cited in Murtaza
Ally Mangungu (supra):
does the judgment or order as made, finally dispose of the
rights of the parties? If it does then ... it ought to be treated as
a final order, but if it does not it is then...an interlocutory order.
In this case, the appellant's right was a claim for final satisfaction of the CMA
award. In our view, the order by the learned judge refusing to grant her an order
of temporary injunction against the intended eviction, had nothing to do with the
said settlement of the award. In that sense, that order, even if prone to criticism,
is not appealable because it did not bring to finality the issue of the settlement of
the award.
For the reason discussed above, it is our conclusion that this appeal is barred by
section 5 (2) (d) of the AJA, therefore improperly before us. We strike out the
appeal, but make no order for costs because it arises from an employment
dispute. Order accordingly.
Appeal struck out
343
KOBIL TANZANIA LIMITED v. FABRICE EZAOVI
AT DAR ES SALAAM
(MWAMBEGELE, KITUSL, and KAIRO, JJ.A.)
(Appeal from the Judgment of the High Court of Tanzania (Labour Division) at
Dar es Salaam, Mipawa, J., dated 3rd March, 2016 in Revision No. 325 of
2015)
Constructive Termination - employer allegedly raised allegations of fraud
against respondent and went on to terminate respondent’s monthly salary and
changed the management system of employment – Whether employer created
intolerable conditions amounting to constructive termination.
The respondent was an employee of the appellant, working as her Managing
Director. The respondent resigned from employment claiming that the appellant,
through his conduct, forced him to resign. The CMA decided in favour of the
respondent. The appellant was aggrieved by the decision of the CMA. His efforts
to challenge it in the Labour Division of the High Court was barren of fruit.
Undaunted, the appellant lodged this appeal to the Court.
Held: i) For constructive termination to be established, the following conditions
should be proved by the employee; first, the employee should intend to bring the
employment relationship to an end, secondly, the working relationship should
become so unbearable that the employee cannot not fulfil his obligation to work;
thirdly, the employer creates an intolerable situation, fourthly, the intolerable
situation is likely to continue for a period that justifies termination of the
relationship by the employee and lastly, the termination of the employment
contract is the only reasonable option open to the employee.
ii) For constructive dismissal to stand, an employee must show that the course
of action taken by him was a last resort. Constructive dismissal cannot stand
where an employee had an alternative avenue to resolve the problem.
Appeal allowed
344
Cases referred to
(1) Heat Exchangers (Pty) Ltd v. Victor J L De Araujo & 2 Others, Case
No: JR 155/16
(2) Solid Doors (Pty) Ltd v. Commissioner Theron and Others, (2004) 25 ILJ
2337 (LAC)
(3) Solidarity on behalf of Van Tonder v. Armaments Corporation of SA
(SOC) Ltd and Others, (2019) 40 ILJ 1539 (LAC)
(4) Jooste v. Transnet Ltd t/a South African Airways [1995] 16 ILJ
629 (LAC).
(5) Pretoria Society for the Care of the Retarded v. Loots [1997] 18
ILJ 981 (LAC).
(6) Girango Security Group v. Rajabu Masudi Nzige, Labour Revision No.
164/2013
(7) Foschini Group v. Commission for Conciliation, Mediation and
Arbitration and Others (2008) 29 ILJ 1515 (LC)

(1) Section 40 (1) (c) of the Employment and Labour Relations Act, 2004
(2) Section 186 (1) (e) of the Labour Relations Act, 1995
Mr. Mayenga, for Appellant

Mr. Moshi, for Respondent

MWAMBEGELE, J.A.: The respondent Fabrice Ezaovi, a French National,

was an employee of the appellant, Kobil Tanzania Limited, working as her
Managing Director having been employed since 28.10.2003. He earned Tshs.
23,000,000/= per month up to the time of his resignation on 05.06.2012. After
resignation, the respondent instituted a constructive termination dispute before
the Commission for Mediation and Arbitration (the CMA) claiming that the
appellant, through his conduct, forced him to resign on 05.06.2012. In the CMA,
as gleaned from the record of appeal at p.10, the respondent sought the following
reliefs; compensation for unfair termination for 36 months' salary, payment in
345
lieu of notice, payment of leave, severance pay and transportation to the area of
recruitment.
In the CMA, the respondent averred that the appellant employer had raised
allegations of fraud against him after he declined the appellant's order to retrench
60% of the staff and yet she did not follow any procedures after such allegations,
instead, she went on to terminate his monthly salary and changed the
management system. Such acts by the appellant, he averred, by the appellant
made the working conditions very hard for him which he could not stomach and
forced him to resign.
Upon hearing the parties, the CMA decided in favour of the respondent by ruling
that there was constructive dismissal of the respondent by the appellant and the
latter was ordered to pay the former twelve months' salary which amounted to
Tshs. 276,000,000/= as compensation, Tshs. 23,000,000/= one month’s salary
in lieu of notices; severance pay for the nine (9) years the respondent has been
working with the appellant company (Tshs. 51,750,000/=), making a total of
Tshs. 350,750,000/=. The appellant was aggrieved by the decision of the CMA.
His efforts to challenge it in the Labour Division of the High Court was barren
of fruit, for Mipawa J., upheld the decision of the CMA on 03.03.2016.
Undaunted, the appellant lodged this appeal to the Court on the following eight
grounds:
1. The Honourable High Court Judge erred in law and in fact by
holding that the respondent proved that he was constructively
terminated while in actual fact there was no proof of the alleged
constructive termination·
2. The Honourable High Court Judge erred in law and in fact by his
failure to appreciate the evidence on record which clearly shows
that the respondent resigned on his own accord after being
accused of misconduct and more specifically respondent's acts of
insubordination to the appellant·
3. The Honourable High Court Judge erred in Jaw and in fact by his
failure to rule that the fact that the respondent admitted to have
worked against appellant's policy which did not allow personal
interest at the work place, the act by the respondent to resign
intended to pre-empt the appellant's move to take disciplinary
action against the respondent;
346
4. The reason for termination as per respondent's CMAF-1
prescribed form being that of misconduct, the honourable High
Court Judge erred in law and in fact by confirming the CMA
Award awarding the respondent severance payment for nine
years equal to Tshs. 51,750,000/=;
5. The Honourable High Court Judge fai1ed to rule that the
arbitrator committed an error by punishing the appellant under
section 40 (1) (c) of the Employment and Labour Relations Act,
2004 for unfair termination and proceeded to order the payment
of 12 months' salaries compensation while in actual fact, the
respondent failed to prove his allegations as required under rule
7 (2) of the Employment and Labour Relations (Code of Good
Practice) Rules, 2007;
6. The Honourable High Court Judge failed to rule that the award
was improperly procured to the extent of showing that the
honourable arbitrator exercised jurisdiction not vested in him by
law when he initially mediated and subsequently proceeded to
arbitrate the dispute between the parties and most importantly by
failure to properly refer the matter to Arbitration as required by
law;
7. The Honourable High Court Judge failed to rule that the CMA
impugned award plus proceedings at the CMA was problematic
for lack of consistencies contrary to the requirements of the Rules
and laws of procedure; and
8. The Honourable High Court Judge erred in law and in fact by his
failure to consider various authorities cited to him and
disregarding his own decision which justifiably favoured the
employer the appellant in this appeal without assigning reasons
for his departure.
When the appeal was placed for hearing before us, both parties were represented.
While the appellant was represented by Mr. Sylivatus Sylivanus Mayenga,
learned advocate, the respondent was represented by Mr. Stephen Mosha, also
learned advocate. Both parties had earlier on filed written submissions in support
of their respective positions which they sought to adopt as part of their oral
submissions.
347
Having summarized the background facts to the appeal and the submissions of
the learned counsel for both parties, the ball is now in our court to determine the
issues of controversy in the appeal before us. In this appeal, we think there are
two main issues of controversy. The first one is whether the respondent was
constructively dismissed. The second issue is dependent upon the first one being
answered in the affirmative; it is whether the High Court rightly upheld the
award. In determining these issues, we respectfully think, the starting point
should be to first come to grips with the concept of constructive dismissal. The
term is provided for by rule 7 (1) of the Code of Good Practice which, for easy
reference, we reproduce hereunder:
Where an employer makes an employment intolerable which
may result to the resignation of the employee, that resignation
amounts to forced resignation or constructive termination.
The provision has been a subject of discussion in a number of decisions of the
High Court. Unfortunately, we could not lay our hands on any decision of the
Court on the point. However, there is more than enough jurisprudence on the
point from South Africa from where we have heavily imported our labour laws
and which decisions we have domesticated through the decisions of the High
Court. The subject had been discussed extensively by the Labour Court of South
Africa in HC Heat Exchangers (Pty) Ltd v. Victor J L De Araujo & 2 Others,
Case No: JR 155/16 (accessed at
http://www.saflii.org/za/cases/ZALOHB/2019/275.html) tracing its origins
from common law and how it was imported into South Africa. The South African
Labour Court was discussing, inter alia, the provisions of section 186 (1) (e) of
the Labour Relations Act, 1995 (as amended from time to time) which is in pari
materia with rule 7 (1) of the Code of Good Practice. That provision defines
dismissal as meaning, inter alia:
(e) an employee terminated a contract of employment with or
without notice because the employer made continued
employment intolerable for the employee.
In Solid Doors (Pty) Ltd v. Commissioner Theron and Others, (2004) 25 ILJ
2337 (LAC) at para 28, it was observed:
… there are three requirements for constructive dismissal to
be established. The first is that the employee must have
terminated the contract of employment. The second is that the
348
reason for termination of the contract must be that continued
employment has become intolerable for the employee. The
third is that it must have been the employees employer who
had made continued employment intolerable. All these three
requirements must be present for it to be said that a
constructive dismissal has been established. If one of them is
absent constructive dismissal is not established…
What amounts to "intolerability" was discussed in Solidarity on behalf of Van
Tonder v. Armaments Corporation of SA (SOC) Ltd and Others, (2019) 40 ILJ
1539 (LAC) at para 39 as follows:
...The word ‘intolerable’ implies a situation that is more than
can be tolerated or endured; or insufferable. It is something
which is simply too great to bear not to be put up with or
beyond the limits of tolerance…
Here in Tanzania, the position is not different. In Katavi Resort v. Munirah J.
Rashid [2013] LCCD 161, the High Court discussed constructive termination of
employment and, relying on South African cases, instructively articulated
important questions which must be asked to determine constructive dismissal.
At p. 285, the High Court directed arbitrators to:
... ask themselves the following questions as put down by the
L4C - Labour Appeal Court of the Republic of South Africa
(L4C) where our new labour laws are heavily borrowed from
... First did the employee intend to bring the employment
relationship to an end? - Jooste v. Transnet Ltd t/a South
African Airways [1995] 16 ILJ 629 (LAC). Second, had the
working relationship become so unbearable, objectively
speaking, that the employee could not fulfil his obligation to
work – Pretoria Society for the Care of the Retarded v. Loots
[1997] 18 ILJ 981 (LAC). Third, did the employer create an
intolerable situation? Fourth, was the intolerable situation
likely to continue for a period that justified termination of the
relationship by the employee? - Pretoria Society for the Care
of the Retarded v. Loots [1997] 18 ILJ 981 (LAC). Fifth was
the termination of the employment contract the only
reasonable option open to the employee?
349
[See also Girango Security Group v. Rajabu Masudi Nzige, Labour Revision No.
164/2013 (unreported).]
The High Court went on to observe at the same p. 285 that to prove constructive
dismissal in terms of rule 7 (1) of the Code of Good Practice, the foregoing
questions must be asked with a view to answering the following:
The employer should have made the employment intolerable.
Termination should have been prompted or caused by the
conduct of the employer. The employee must establish there
was no voluntary intention by the employee to resign, the
employer must have caused the resignation. The Arbitrator or
court must look at the employers conduct as a whole and
determine whether its effects, judged reasonably and sensibly,
is such that the employee cannot be expected to put up with it.
We subscribe to the analysis and stance taken by the South African Courts and
the High Court in Katavi Resort (supra) and Girango Security Group (supra) and
endorse it as a correct exposition of the law in this jurisdiction.
We shall be guided by the above principles in the determination of the appeal
before us.
Reverting to the matter at hand, we respectfully think, in order to answer whether
there was constructive dismissal in this matter, we need to answer the questions
as posed in Katavi Resort (supra) and Girango Security Group (supra). These
are:
1. Did the employee intend to bring the employment
relationship to an end?
2. Had the working relationship become so unbearable
objectively speaking that the employee could not fulfil his
obligation to work?
3. Did the employer create an intolerable situation?
4. Was the intolerable situation likely to continue for a period
that justified termination of the relationship by the
employee?
5. Was the termination of the employment contract the only
reasonable option open to the employee?
350
The first question is not difficult to answer, for the record of appeal bears out
clearly that the respondent wrote the appellant intimating to her that he was
resigning. The letters of resignation appearing at pp.178 and 180 were addressed
to Mr. Segman, the Group Managing Director of the appellant and to the Board
of Directors of the appellant. For easy reference, we will let the letters speak for
themselves. The first one is dated 04.06.2012 and appears at p. 179 of the record
of appeal. It reads:
Mafuta Road, Kurasini,
P.0. Box 223 Dar es Salaam/ Tanzania
Tel: 2128846/7, 2135470/1/ Fax 2128848/9
EmaiI: kobil@kobil.co. tz Website: www.kenolkobil.com
TIN 100 - 427 - 230
VRN: 10- 014001 - B
Dar es Salaam, June, 4, 2012.
To the attention of Mr. Segman Managing Group Director
Kenol Kobil. Dear Mr. Segman
Please accept this message as notification that I am leaving
my position with Kobil Tanzania Ltd effective June, 2012.
I appreciate the opportunities I have been given at Kobil
Tanzania Ltd and your professional guidance and support. I
wish you and the company success in the future.
I will hand over all my duties to Mathew Mbugua and
Andrew Lindi.
Respectfully yours, Fabrice Ezavi.
The second one which is handwritten and appears at p. 178
of the record of appeal, was addressed to the Board of
Directors of the appellant and dated 05.06.2012. It reads:
From: Fabrice Ezavi Dares Salam

5th June, 2012
To the attention of
Board of Directors of Kenai kobiI
By this letter I confirm that I have decided to resign from my
position of Director of Kobil Tanzania Ltd.
Done by Fabrice Ezavi (sgd)
5th June, 2012.
351
We note the surname of the author of the two letters as Ezavi (not Ezaovi as
appearing elsewhere in the record of appeal). As there seem to be no dispute that
the two letters were authored by the respondent, we assume it was a mere
keyboard mistake in respect of the first letter dated 04.06.2012 and a mere slip
of the pen in respect of the second; the handwritten one, dated 05.06.2012. The
hallmark of the two letters is clear; that the respondent intended to bring the
employment to an end. The appellant stated in no uncertain terms in the first
letter that he was leaving his position with Kobil Tanzania Ltd with effect from
June, 2012. He reiterated the same openness in the second letter stating that he
was confirming that he decided to resign from his position of Director of Kobil
Tanzania Ltd. We thus answer the first question in the affirmative. That is, the
respondent employee intended to bring the employment relationship to an end.
We now turn to answer the second question which seeks to answer whether the
working relationship had become so unbearable objectively speaking that the
employee could not fulfil his obligation to work. The story is told by the
respondent in his testimony that the working conditions had become unbearable.
We wish to underline here that the test is objective rather than subjective. The
duty to prove the objectivity of the intolerability rests on the employee. As was
observed in in HC Heat Exchangers (supra) at para 50:
The onus to prove the existence of intolerability rests squarely
upon the shoulders of the employee party. The subjective view
of the employee is of no consequence in discharging this onus,
as the enquiry to establish whether intolerability exists is
always an objective one.
The respondent's main complaint at the CMA as gleaned from paras 5, 6 and 7
of the Statement of Complaint available at pp. 15 - 16 of the record of appeal,
was that the appellant created intolerable working conditions after he refused to
terminate the employment of 60% of the staff. That the refusal created enmity
between him and the appellant. He clarified in his testimony at p. 135 that while
on leave outside the country he was told to terminate the agreement between the
company and its lawyer and when he returned he was told by one Andrew Lindi
that he had been directed not to pay him salary. We will let his testimony at p.
135 speak for itself:
I also received a phone [call] from Mr. Andrew Lindi as the
Finance Manager, informed me that he got information from
Mr. Segman not to pay me any more salary. So, based on that
352
I immediately called Mr. Segman and asked him what was the
reason behind, he was not very clear rather than demanded me
to come back for more discussion.
From the above, we find difficulty in answering in the affirmative the question
whether the reason for termination of the employment was such that continued
employment had become intolerable for the respondent. It is apparent that the
appellant, through Mr. Segman, wanted to have the matter discussed further. The
working conditions could not have become unbearable just all of a sudden. It
should have been, in our view, a process that would take a period of time. We
thus answer the second question in the negative. That is, the working relationship
had not become so unbearable objectively speaking that the employee could not
fulfil his obligation to work.
Having answered the second question in the negative, the third question must be
simple to answer for its answer is dependent upon the answer to the second
question. The answer to the third question is that the employer did not make
continued employment intolerable.
Similarly, the second and third questions having been answered as above, the
fourth question does not arise.
The fifth question is what makes the respondent's case really difficult. As seen
in the respondent's testimony reproduced above, the appellant was ready to
discuss the matter. The respondent did not testify why he would not heed to the
appellant's proposal "to come back for more discussion". In order for
constructive dismissal to exist, the employee's act to resign must be one of last
resort. An employee must exhaust all available means of dispute resolution at
the place of work.
Discussing constructive dismissal, Sharon Sheehan, in an article titled
Constructive Dismissal - A Last Resort Remedy has this to say:
Unlike all other dismissals, where an employee claims that
they have been constructively dismissed the onus/burden of
proof is placed upon them to prove that their resignation was
justified. In effect they are required to prove that they have
exhausted all other avenues of resolution before they have
resigned from their position. This would generally require
them to bring their grievance to the attention of their employer,
follow all the employer's grievance procedures and industrial
353
relations procedures, as outlined in their contract or the
employee handbook. Only where these procedures have not
achieved an appropriate outcome or where the employer has
refused to comply with or engage in these procedures, then
should an employee consider resigning from their position. A
failure to invoke these procedures may leave the Court or
Tribunal open to rejecting a claim of constructive dismissal.”
[accessed at
https://www.cpaireland.ie/CPAireland/media/Educationtraini
ng/Study%20Support%20Resources/P1%20Corp%20Laws%
20and%20Governance/Relevant%20Articles/constructive-
dismissal-a-last-resort- remedy.pdf]
In the matter before us, we are of the considered view that the respondent acted
in a rush. He did not make any attempt to discuss the matter as proposed by the
appellant. According to his testimony he arrived on Sunday and drafted the
resignation letter over the night and the following day. That course of action was
not a last resort remedy. It was not exercised after all other avenues of disputed
resolution had been exhausted. That rush, in our view, cannot make the
constructive dismissal stand. We thus agree with Mr. Mayenga that the
respondent resigned on his own volition. The employer is not to blame for his
resignation.
As far as we are aware, for constructive dismissal to stand, an employee must
show that the course of action taken by him was a last resort. Constructive
dismissal cannot stand where an employee had an alternative avenue to resolve
the problem. As was observed in HC Heat Exchangers (supra), at para 54:
… Where there is a grievance process in the employer
available to the employee which would, if applied, resolve the
cause of complaint, the employee must follow it. If the
employee does not follow it, the employee cannot as a matter
of principle claim constructive dismissal unless the employee
proves that there exist truly exceptional circumstances that
may serve to absolve the employee from this obligation. And
for the employee to subjectively claim that he or she has no
confidence in the grievance outcome or that the employer
would not reform, cannot suffice as such exceptional
circumstances.
354
As was also observed in Foschini Group v. Commission for Conciliation,
Mediation and Arbitration and Others (2008) 29 ILJ 1515 (LC) at para 22:
Where an employee resigns and claims a constructive
dismissal under circumstances where he did not avail himself
of an available grievance procedure or the mechanisms for
dispute resolution provided for in the Labour Relations Act,
he will have to show very compelling reasons why he failed
or refused to follow these procedures available to him prior to
resignation …
As if the above was not enough, the respondent tendered his resignation letters
without disclosing the reasons why such resignation. No information was
disclosed showing that he was resigning at the instance of the appellant's actions
which made employment unbearable. In the circumstances constructive
termination, again, cannot stand.
To recap, we find that the respondent’s act of resignation was not one of last
resort. He did not prove any condition that made the employment unbearable.
He did not exhaust the dispute resolution mechanism at his disposal. His
resignation was out of the blue, so to speak, and did not disclose the reason for
taking that course. His employer, through Mr. Segman, was ready to discuss the
matter with the respondent but the latter did not give the former the opportunity
to remedy the situation. His resignation was thus tendered while there was still
room for solving the problem without resignation. Constructive dismissal was
not proved.
For the reasons we have endeavoured to assign hereinabove, we find merit in
this appeal and allow it. As this is a labour related matter, we make no order as
to costs.
Appeal allowed
MAGNET CONSTRUCTION LIMITED v. BRUCE WALLACE
JONES
AT MUSOMA
(WAMBALI, KITUSI, and MASHAKA, JJ.A.)
355
(Appeal from the Ruling and Drawn Order of the High Court of Tanzania at
Musoma, Galeba, J., dated 26th June, 2020 in Miscellaneous Labour
Application No.3 of 2020)
Limitation period – Lapse of time between when the last application was struck
out and the time when the current application was made – whether the appellant
accounted for the period of delay as required by law
Extension of time – ground of illegality – whether illegality must be fully
established for the court to exercise its discretion to extend time.
The appellant terminated the respondent's through an email. The respondent was
not satisfied with the termination of his employment for being unfair. He
therefore lodged a labour complaint in the Commission for Mediation and
Arbitration (CMA). The CMA decided in favour of the respondent. The
appellant was aggrieved and he filed an application for revision in the High Court
of Tanzania Labour Division. There were number of applications made in the
High Court. Lastly, the appellant lodged Miscellaneous Labour Application
No.3 of 2020, subject of this appeal, seeking extension of time to restore
Miscellaneous Labour Application No.7 of 2017. The main issue before the
Court was whether the appellant failed to account for the period of delay of 51
days.
Held: i) It is settled law that the court can only grant extension of time if the
appellant shows sufficient cause.
ii) For the Court to exercise the discretion to extend time, the party must satisfy
it that since being aware of facts of delay that he is out of time, his conduct must
portray that he acted expeditiously and diligently in lodging the application for
extension of time.
iii) It is settled law that an application for extension of time is granted upon the
exercise of judicial discretion by the Court upon being convinced by the reasons
for the delay placed before it.
iv) It is settled law that where the point of law at issue is illegality or otherwise
of the decision being challenged, that by itself constitutes sufficient cause for
granting extension of time. However, the illegality must be sufficiently
demonstrated by the app.
v) Time will not be extended in every situation whenever illegality is alleged as
an issue by the applicant. It all depends on the circumstances of each case and
the material placed before the court.
356
Appeal dismised
Cases referred to
(1) Michael Lessani Kweka v. John Eliafye [1997] T. L. R.152
(2) Tanzania Ltd v. Kiwengwa Strand Hotel Ltd, Civil Application No.111 of
2009;
(3) The Attorney General v. Twiga Paper Products Limited, Civil
Application No.128 of 2008
(4) Mwita s/o Mhere v. The Republic, [2005] T.L.R.107
(5) VIP Engineering and Marketing Limited and Three Others v. Citibank
Tanzania Limited, Consolidated Civil References No.6, 7 and 8 of 2006

Mr. Njowoka, for Appellant

Mr. Phillipo, for Respondent

Dated 5th November, 2021
WAMBALI, J.A.: The respondent's employment was terminated by the

appellant through an email dated 29th February, 2016 while he was on leave in
South Africa. The respondent was not satisfied with the termination of his
employment which he considered to be unfair. He therefore lodged a labour
complaint in the Commission for Mediation and Arbitration (CMA) in Labour
Dispute No. CMA/TRM/64/2016 to contest the termination. After hearing the
parties' evidence the CMA delivered an award in favour of the respondent and
ordered the appellant to compensate him, USD 90,000 equivalent to twelve
months’ salary plus USD 1000 as one-month salary in lieu of notice. The
computation of the award was based on monthly salary of the respondent to the
tune of USD.7000 which he was paid by the appellant.
The appellant was aggrieved and he filed an application for revision in the High
Court of Tanzania Labour Division in Labour Revision No. 11 of 2016.
Unfortunately, the respective application was struck out for wrong citation of the
enabling provisions of the law. As a result, the appellant lodged Labour
357
Application No. 7 of 2017 for extension of time within which to file revision
afresh. As it turned out, the respective application was struck out for want of
prosecution as neither the appellant nor his advocate appeared on the scheduled
date of hearing, that is, 15th July, 2019.
Still determined to pursue justice, the appellant filed two Miscellaneous Labour
Applications No. 27 of 2019 and No. 33 of 2019 for extension of time to file
revision. Equally important, both were terminated by being struck out and
withdrawn respectively for different reasons. Lastly, the appellant lodged
Miscellaneous Labour Application No.3 of 2020, subject of this appeal, seeking
extension of time to restore Miscellaneous Labour Application No.7 of 2017. As
it were, the application was dismissed for the reason that the appellant failed to
account for the period of delay of 51 days. Aggrieved, the appellant has appealed
to this Court through a memorandum of appeal consisting of three grounds of
appeal premised on the following complaints:
1. That the judge erred in both law and fact by holding that the
appellant failed to account for delay relying upon summons
or notice of hearing served to a party via text message
without proof of service.
2. That the judge erred in both law and fact by holding that
summons or notice of hearing was duly served without
proof of service as required by the law.
3. That the judge erred in both law and fact for failure to hold
that illegality on the original decision to be impugned can
be argued for the court to extend time in a miscellaneous
application relating to and/ or arising from the original
decision.
When the appeal was placed before us for hearing, the appellant was duly
represented by Mr. Henry Simon Njowoka, learned advocate who held the brief
of Mr. Philemon Raulencio, learned advocate, with instruction to proceed. On
the other side, the respondent was represented by Mr. Edison Philipo, also
learned advocate.
Having heard the submissions of the counsel for the parties, the major issues for
our determination at this point are firstly, whether the appellant accounted for
the period of delay as required by law, and secondly, whether illegality was fully
358
established to enable the High Court to exercise its discretion to extend time as
prayed by the appellant.
Admittedly, in determining the reason for the delay advanced by the appellant in
Miscellaneous Labour Application No.3 of 2020 which aimed to restore
Miscellaneous Labour Application No. 7 of 2017, the learned High Court Judge,
Galeba, J., as he then was, considered paragraphs 7 and 8 of the affidavit of Ms.
Noelina Bippa Ibrahim in support of the application and the submissions of
counsel for the parties and ultimately reasoned and concluded as follows:
For the above explanation to be satisfactory explanation to the
court, within the meaning of rule 36(1) of the Labor Court
Rules, there are points that this court will have to consider,
first although the affidavit refers to the loss report of the
telephone of Mr. Philemon Semakula, there is no loss report
attached to the affidavit what was attached to the affidavit is
an ERV receipt for payment of Tshs.500 being in respect of a
loss report. The receipt does not state that what was lost was
telephone or the SIM card or anything specific. Secondly
although the affidavit states that the telephone for reliable
communication was reported to the Police on 16/4/2019 but
no efforts were made to communicate to the court the
appropriate phone numbers for communication purposes after
the first one had been lost. The court officials used the phone
numbers that were shown in the chamber summons. The court
would not have known that a telephone was lost and new
numbers were in place. In other words, the court was not
informed of the appropriate number to communicate to the
applicant. Who is negligent in the circumstances/ the court or
someone who lost the phone but did not supply a proper
communication if there was any? With the above
considerations, this court holds that the first period of delay
was not explained to the satisfaction of the court. This is not
to say that Ms. Ibrahim did not do painstaking research/ she
did what was within her abilities but the acts and omissions of
previous advocates betrayed her.
Having regard to the above reproduced reasons and conclusion of the learned
Judge and concession of Mr. Njowoka on the failure of the appellant to account
359
for the period of delay; we find the complaints of the appellant in the first and
second grounds of appeal unfounded. We are satisfied that since the appellant
failed to account for the delay in lodging the application, the High Court could
not exercise its discretion to grant extension of time.
It is settled law that the court can only grant extension of time if the appellant
shows sufficient cause. In Michael Lessani Kweka v. John Eliafye [1997] T. L.
R.152 the Court stated that:
The court has power to grant an extension of time if sufficient
cause has been shown for doing so.
Therefore, to be entitled to extension of time, the applicant must put before the
court sufficient material to show not only that he took actions before and after
expiry of time to lodge the application but also that he acted promptly and
diligently to take the action in order to convince the court to exercise its
discretion grant extension of time.
Indeed, for the Court to exercise that discretion, the applicant must satisfy it that
since being aware of facts of delay that he is out of time, his conduct must portray
that he acted expeditiously and diligently in lodging the application for extension
of time. (See Royal Insurance of Tanzania Ltd v. Kiwengwa Strand Hotel Ltd,
Civil Application No.111 of 2009 and The Attorney General v. Twiga Paper
Products Limited, Civil Application No.128 of 2008 (both unreported).
It is thus settled law that an application for extension of time is granted upon the
exercise of judicial discretion by the Court upon being convinced by the reasons
for the delay placed before it. In Mwita s/o Mhere v. The Republic, [2005]
T.L.R.107, the Court stated that:
Judicial discretion is the exercise of judgment by a Judge or
court based on what is fair, under the circumstances and
guided by the rules and principles of law and the Court has to
demonstrate however briefly how the discretion has been
exercised to reach the decision it takes.
In the instant appeal, we are satisfied that the appellant failed to account for the
period of 51 days after Miscellaneous Labour Application No.7 of 2020 was
struck out till when the application for extension of time was formerly lodged
before the High Court as correctly conceded by Mr. Njowoka in his submission
360
at the hearing of the appeal. Consequently, we dismiss the first and second
grounds of appeal.
With regard to the third ground of appeal, we are mindful of the settled law that
where the point of law at issue is illegality or otherwise of the decision being
challenged, that by itself constitutes sufficient cause. For this position see for
instance the decision of the Court in VIP Engineering and Marketing Limited
and Three Others v. Citibank Tanzania Limited, Consolidated Civil References
No.6, 7 and 8 of 2006 (unreported).
However, having scrutinized the application which was before the High Court
whose decision is the subject of this appeal; we are of the settled opinion that
illegality was not sufficiently demonstrated by the appellant. We note that the
affidavit in support of Miscellaneous Labour Application No. 3 of 2020 did not
clearly show that the decision of the High Court in Miscellaneous Labour
Application No.7 of 2017 which was for extension of time raised anything to
attract consideration of the alleged illegality. Basically, the decision of the High
Court simply struck out the application for want of prosecution. It was from that
decision that the appellant lodged Miscellaneous Labour Application No.3 of
2020 seeking extension of time within which to restore the struck out application
which was also intended to apply for extension of time to lodge an application
for revision against the decision of the CMA.
Our close scrutiny of the notice of application and the supporting affidavit in
respect of Miscellaneous Labour Application No.7 of 2017 leads us to the
conclusion that there is nothing concerning the allegation of illegality which is
apparent in the application which was struck out. On the contrary, paragraph 11
of the affidavit in support of Miscellaneous Labour Application No.3 of 2020
raised a completely new issue of illegality, allegedly in the intended decision for
revision of the decision of the CMA. However, the application which was struck
out was not intended to enable the appellant to lodge revision against the decision
of the CMA if the prayer for extension was ultimately granted by the High Court.
Indeed, even if the application for extension of time could have been granted,
the issue of illegality would not have been argued before the High Court in
Miscellaneous Application No.7 of 2017 as it was not an issue in view of the
notice of application and the affidavit as intimated above.
Besides, as we have demonstrated above, the appellant did not convince the High
Court that the illegality pointed out in paragraph 11 of the affidavit in support of
the application, was an issue in Miscellaneous Application No.7 of 2017 or the
361
decision which was the subject of Miscellaneous Application No.3 of 2020,
whose decision is the subject of the instant appeal.
In the circumstance of what was placed before the High Court, we subscribe to
the decision of the Court in Tanzania Harbours Authority v. Mohamed R.
Mohamed [2003] T.L.R. 76 that time will not be extended in every situation
whenever illegality is alleged as an issue by the applicant. It all depends on the
circumstances of each case and the material placed before the court. Particularly,
at page 77 the Court stated:
(ii) This Court has said in a number of decisions that time
would be extended if there is an illegality to be rectified,
however this Court has not said that time must be extended in
every situation.
In the event, it cannot be said that the learned High Court Judge improperly
exercised his discretion to refuse the application for extension of time without
sufficient reasons. As we have demonstrated above, the appellant did not place
sufficient material to account for the period of delay in lodging the application.
Moreover, he did not also justify the existence of illegality in the decision of the
High Court whose application was intended to be restored. In the circumstances,
we equally dismiss the third ground of appeal.
In the end, we are settled that this appeal is devoid of merit, and we hereby
dismiss it. However, in view of the circumstances of this appeal, we order that
parties shall bear their respective costs.
Appeal dismised
MAGNUS K. LAUREAN v. TANZANIA BREWERIES LIMITED

AT DAR ES SALAAM
(NDIKA, GALEBA, and MWAMPASHI, JJ.A.)
Division at Dar es Salaam, Nyerere, J., dated 22nd September, 2017 in Revision
No. 283 of 2016)
362
Evidence – Investigative report – Report not made on any official headed paper
and lacked the signature of its make – Report not made by an independent
investigator but an official from Security company who had an apparent interest
to serve – Whether the report was admissible, authentic and reliable - Section
18 of the Electronic Transactions Act, 2015
Negligence - Appellant was the supervisor of the warehouse in issue, - Appellant
removed the allegedly faulty locking device with the view to replacing it.
Whether appellant was responsible for ensuring that the malfunctioning locking
device was replaced in time and that he failed to do so.
Reliefs - Judge vacated CMA's award of reinstatement without loss of
remuneration on two grounds: one, that reinstatement was not prayed for; and
two, that the termination having been adjudged substantively fair but only
procedurally unfair, reinstatement was undeserved – Whether Judge’s decision
was justified
The appellant was employed by the respondent as a Pump House Operator. He

rose through the ranks and became a Logistics Officer. On 2nd May, 2012, he
was notified by the respondent that his employment had been terminated with
effect from 24th April, 2012 for the offence of negligence in his performance of
work following disciplinary proceedings held on 24th April, 2012. He filed the
matter at CMA. The CMA found it unproven that the appellant breached any
rule or standard regulating conduct relating to his employment. The respondent
was thus ordered to reinstate the appellant without loss of remuneration for the
period the appellant was absent from work due to the unfair termination. On
revision by the respondent, the High Court overturned the decision by the CMA.
Dissatisfied, the appellant filed this appeal with the Court.
Held: i) The claim that the investigative report, being an email could only be
admissible if it met the requirement of section 18 of the Electronic Transactions
Act, 2015 is clearly an afterthought. It was never raised before the CMA when
the document was tendered in evidence for the arbitrator to determine if the
document complied with the rules of authentication under the said section. Nor
was it brought to the attention of the High Court. Since the appellant did not
object to its admissibility at the time it was tendered, the Court finds no basis to
entertain this belated grievance.
ii) Where the maker of the report and the person for whom it was intended does
not disown it, the party's challenging against its authenticity is inconsequential.
363
iii) The appellant acted on his own, that he did not report the matter to his
immediate supervisor, that the removal of the lock was unauthorized and that no
replacement locking device was fixed. The removal of the lock without
authorization was a serious breach of the security protocol and that it undermined
the level of security for the warehouse.
iv) Section 40 (1) of ELRA vests in an arbitrator or the High Court, Labour
Division the discretion to determine the appropriate remedy to be granted
following a finding of unfair termination against the employer. Certainly, such
discretion must be exercised judiciously, not capriciously.
v) Generally, where the termination is adjudged unfair on procedural grounds
only, an arbitrator or the High Court, Labour Division will award compensation
under section 40 (1) (c) of the ELRA as opposed reinstatement or re-engagement
under section 40 (1) (a) and (b) respectively of the ELRA. But if the
termination is held to be both substantively and procedurally unfair, it will be
fitting to order reinstatement without loss of remuneration unless there are
justifiable grounds for not doing so in terms of Rule 32 (2) of the Labour
Institutions (Mediation and Arbitration Guidelines) Rules, 2007, G.N. 67 of
2007 ("the Guidelines Rules").
vi) It is settled that generally an arbitrator or the High Court, Labour Division
has no jurisdiction to grant a relief which is not prayed for in the referral form,
the said form being understood synonymously with a plaint. However, terminal
benefits and a certificate of service pursuant to section 44 (1) and (2) of the
ELRA can be made, subject to proof, even if they had not been claimed in the
referral form. For, they constitute non-discretionary statutory entitlements.
Appeal dismised
Cases referred to
(1) AAR Insurance (T) Ltd. v. Beatus Kisusi, Civil Appeal No. 67 of 2015
(2) Frederick J. Chacha v. Stemo Security Co. Ltd., Labour Revision No. 92
of 2011

(1) Section 18 of the Electronic Transactions Act, 2015
(2) section 44 (1) and (2) of the Employment and Labour Relations Act, Cap.
366 R.E. 2019
(3) Section 40 (1) (c) of the Employment and Labour Relations Act, Cap. 366
R.E. 2019
364
(4) Rule 13 (3) of the Rules Employment and Labour Relations
Mr. Mosha, for Appellant

Mr. Mbwambo, for Respondent

Dated 12th October, 2021
NDIKA, J.A.: The appellant, Magnus K. Laurean, contests the decision of the
High Court of Tanzania, Labour Division at Dar es Salaam (Nyerere, J.) dated
22nd September, 2017 in Revision No. 283 of 2016. In that decision, the High
Court partly allowed the revision by the respondent, Tanzania Breweries
Limited, against the award of the Commission for Mediation and Arbitration
("the CMA") dated 7th December, 2015 which had held that the appellant's
termination from employment was substantively and procedurally unfair. In
essence, the present appeal assails the High Court's finding that the termination
was substantively fair but procedurally unfair, an outcome that led to a
consequential diminution of the reliefs the CMA had awarded the appellant.
It is necessary to set out the essential facts of the case at the beginning. The
appellant was employed by the respondent on 20th August, 2002 as a Pump
House Operator. He rose through the ranks and became a Logistics Officer with
effect from 4th May, 2007. On 2nd May, 2012, he was notified by the respondent
vide a letter dated 27th April, 2012 that his employment had been terminated with
effect from 24th April, 2012 for the offence of negligence in his performance of
work following disciplinary proceedings held on 24th April, 2012.
The said proceedings arose following the stealing of 687 bags of sugar
equivalent to 34.3 tons worth TZS. 65,003,940.00 that occurred in the night of
10th March, 2012 or early morning on 11th March, 2012 at the respondent's
warehouse at Kipawa, Dar es Salaam ("the warehouse"). Of the stolen sugar,
12.9 tons was recovered, implying that the loss suffered by the respondent from
the stealing was confirmed to be TZS. 40,497,360.00. The stealing was reported
to the police who mounted their own investigations into the matter.
Meanwhile, the respondent received an investigative report on the sugar
storage warehouse dated 4th April, 2012 (Exhibit TBL-1) from Mark Hart
(DW2), an official from KK Security, a security company contracted by the
respondent to provide round the clock security services at the warehouse. The
365
report included a recommendation that the appellant and Mr. Ambakisye A.
Gambi, then the respondent's Issuing and Receiving Officer and the appellant's
subordinate officer, be suspended with immediate effect and disciplinary action
be taken against them. The basis of the recommendation was that both employees
were implicated in negligence and collusion in the stealing of the sugar. As
regards negligence, DW2 reported that on 25th February, 2012 one of three
locking devices was removed from the warehouse without authority and that the
security management was not informed of the action. It was claimed in the report
that there was no replacement of the lock from the time the faulty lock was
removed until the time of the reported stealing. It was further reported that the
appellant and the said Mr. Gambi claimed that a new lock was fixed but at the
scene of the crime only two locks were found instead of three locks.
Furthermore, it was reported that the defective lock was presented to Mul-T-Loc
distributor, a supplier of high security products and access control solutions, for
inspection and that a specialist established that the lock had been tampered with.
In fact, it was claimed that all three locks had been tampered with at an earlier
stage in preparation for the stealing.
It was also claimed in the report that a serious malpractice was detected
involving the bypassing of the alarm system at the warehouse. In addition, it was
alleged that there was irregular handling of stores evidenced by a blatant
disregard of the basic laid down stores operating procedures.
Acting on the report, the respondent suspended the appellant from work and later
subjected him to disciplinary proceedings as hinted earlier.
On the part of the appellant, it was his case that on Saturday 25th February, 2012
he carried out a routine monthly stocktaking at the warehouse accompanied by
Mr. Gambi, a Stock Verifier Irene Nguruwe and one KK Security official.
According to the applicable protocol at the material time, the warehouse had to
be securely locked by using three Mul-T-Loc locking devices two of which were
controlled by the respondent and the other one was under the care and control of
KK Security. At the end of the stocktaking in the evening, it was noted that one
of the two locking devices under the respondent's control was faulty. In response,
in line with his authority he took the faulty locking device to the head office with
the view to replacing it. He reported the matter to the Office Administrator, one
Eveline Msuya, who availed him a replacement, and that his immediate
supervisor, DWl Julius Kawacha, was kept abreast of the matter.
366
Meanwhile the warehouse was securely locked by the two remaining devices,
one under the control of the respondent and the other under KK Security's care
and control. On 27th February, 2012 the replacement lock was handed over to
Mr. Gambi, the custodian of the warehouse, who stated in his statement, at pages
37 and 38 of the record of appeal, that he fixed the new lock on the same day he
received it.
The appellant was insistent that since before the replacement lock was fixed the
warehouse was securely locked by the two remaining devices, one under the
control of the respondent and the other under KK Security's care and control,
stealing was impossible without the keyholders from the respondent and KK
Security conspiring to do so. It was also the appellant's case that DW2's report
was unauthentic and implausible, having been made by an official of KK
Security which was also blameworthy for the stealing.
In its award, the CMA found it unproven that the appellant breached any rule or
standard regulating conduct relating to his employment in terms of Rule 12 of
the Employment and Labour Relations (Code of Good Practice) Rules, 2007,
Government Notice No. 42 of 2007 ("the Rules"). Furthermore, the CMA's
arbitrator found that the investigative report made by DW2 was unreliable on
three grounds: first, it was noticeably unauthentic because it was not made on
any official headed paper and that it lacked the signature of its maker. Secondly,
it was implausible because it was not made by an independent investigator but
an official from KK Security who had an apparent interest to serve. Thirdly, that
the claim that the locking devices had been tampered with was hearsay. Such a
claim could only be made by specialists from Mul-T-Loc offices, none of whom
was called at the hearing to testify for the respondent.
As regards the claim that the appellant was guilty of gross negligence, the
arbitrator held that since it was established in the evidence that the said Mr.
Gambi was the custodian of the keys to the two locking devices under the control
of the respondent, it was the said Mr. Gambi, not the appellant, who ought to
have known whether the devices had been tampered with or not. That the
appellant properly handled the matter after the discovery of the faulty locking
device by seeking and obtaining a replacement which was handed over to the
said Mr. Gambi who was responsible for locking the warehouse. Moreover, there
was no proof of irregular handling of stores by the appellant nor was there
evidence that he had a hand in the bypassing of the alarm system at the
warehouse.
367
As to the process by which the respondent terminated the appellant's
employment, the arbitrator found that it was unfair on the ground that he was not
afforded reasonable time to prepare for the hearing after he was served with the
charges against him. It was in evidence that while he was served with charges
and notice of the hearing on 4th April, 2012, he was required to submit his reply
by 17:00 hours on the same day. This was found to be a violation of Rule 13 (3)
of the Rules stipulating as follows:
The employee shall be entitled to a reasonable time to prepare
for the hearing and to be assisted in the hearing by a trade
union representative or fellow employee. What constitutes a
reasonable time shall depend on the circumstances and the
complexity of the case, but it shall not normally be less than
48 hours. [Emphasis added]
In conclusion, the arbitrator held the impugned termination unfair, both
substantively and procedurally. The respondent was thus ordered to reinstate the
appellant without loss of remuneration for the period the appellant was absent
from work due to the unfair termination. The said remuneration was calculated
to be TZS. 58,394,000.00 as at the time the award was made.
On revision by the respondent, the High Court (Nyerere, J.) held, at page
313 of the record of appeal, that:
It is apparent in the present case that the respondent [the
appellant herein] failed to exercise the degree of care which a
reasonable man/person or ordinary prudence would exercise
by failure to replace the malfunctioning padlock in time and
caused his employer/applicant [the respondent herein] to
suffer irreparable loss. The argument by the respondent’s
counsel that the general principle of the law of negligence
arises where there is duty of care and a person breached that
duty and as a result the other person suffers loss or some kind
of damage applied here because there is clear evidence on
record that the respondent was [the} responsible person for
making sure [that] the malfunctioning padlock was replaced
on time but he failed to discharge the responsibility.
The learned Judge also took into account what was contained in "Exhibit A-3"
that the appellant admitted to have asked a subordinate to remove the faulty
368
locking device and that he did not cross-check if the said device was replaced.
In the premises, she held that the termination was substantively fair thereby
vacating the CMA's finding to the contrary. On the process employed for the
termination, she upheld the arbitrator's finding that the termination was
procedurally unfair for the breach of Rule 13 (3) of the Rules.
Coming to reliefs, the learned Judge, at page 319 of the record of appeal, vacated
the arbitrator's award to the appellant of reinstatement without loss of
remuneration because reinstatement had not been prayed for in the CMA Form
No. 1. Instead, she ordered the respondent to pay the appellant 12 months'
salaries as compensation under section 40 (1) (c) of the Employment and Labour
Relations Act, Cap. 366 R.E. 2019 ("the ELRA"). The respondent was further
ordered to avail the appellant with a certificate of service and other terminal
benefits, that is, annual leave pay, notice pay due and repatriation allowance.
In this appeal, challenging the above decision of the High Court, the appellant
has cited seven grounds of grievance as follows:
1. That the learned Judge erred in law in holding that there was
clear evidence on record that the appellant was the responsible
person for making sure that the malfunctioning padlock was
replaced on time but he failed to discharge such
responsibility.
2. That the learned Judge erred in law and fact in holding that
the appellant himself had admitted to have committed the
offence charged during the disciplinary hearing hence not
entitled to the fruits of Hon. Chuwas arbitral award dated
7/12/2015.
3. That the learned Judge grossly erred in law by failing to make
a finding that the appellant was charged with a distinct offence
and terminated with another offence.
4. That the learned Judge erred in law in failing to address on the
authenticity/admissibility of Exh. TBL-1 (investigation
report) which was prepared and sent by DW2 through email
and which was a subject of the appellant's charges and his
subsequent disciplinary hearing.
5. That the learned Judge erred in law to allow the introduction
of exhibits which were not part of the Commission for
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Mediation and Arbitration proceedings and wrongly held that
misconduct of negligence was proved.
6. That the learned Judge erred in law in disregarding or ignoring
the appellant's submissions in its decision.
7. That the learned Judge erred in law and in fact in holding that
the Honourable Arbitrator erred in granting reinstatement
without considering the [appellant's] prayers in his CMA
Form No. 1.
At the hearing of the appeal before us, the appellant was advocated for by Mr.
Elisaria Jastiel Mosha, learned counsel, while the respondent had the services of
Mr. Rahim Mbwambo, also learned counsel. In their respective oral arguments,
the learned counsel highlighted their written submissions for or against the
appeal along with the list of authorities filed.
We have examined the record of appeal and considered the written submissions
for and against the appeal. In determining the appeal, we propose to begin with
the fourth and fifth grounds sequentially. Next, we will deal with the first, second
and sixth grounds conjointly and then consider the third ground. Finally, we will
round off with the seventh ground.
As indicated earlier, the fourth ground assails the authenticity and reliability of
the investigative report (Exhibit TBL-1) which formed the basis of the
disciplinary proceedings against the appellant. We hinted earlier that the
arbitrator discounted the report for being not only unauthentic but also
implausible as it was not made by an independent investigator. The report was
found to be made upon hearsay so far as it claimed that the locking devices at
the scene were tampered with.
In his lengthy submission on the ground under consideration, Mr. Mosha
essentially faulted the learned Judge for not determining the admissibility,
authenticity and reliability of the report in terms of section 18 of the Electronic
Transactions Act, 2015 (Act No. 13 of 2015). We understood him to be urging
us to uphold the arbitrator's position that the report was unauthentic, implausible
and unreliable. For the respondent, Mr. Mbwambo's argument was threefold:
one, that the report was not the basis for formulation of the charges and the
subsequent disciplinary proceedings against the appellant. Two that the learned
Judge did not consider the report and determine its propriety and cogency. Three,
370
that besides the report there was other cogent evidence on record establishing
the offence of negligence against the appellant.
At the outset, we wish to express our agreement with both learned counsel that
nowhere in her judgment did the learned Judge consider and determine the
authenticity and reliability of the investigative report. This implies that the
arbitrator's position discounting the report was not vacated. With respect,
however, we do not agree with Mr. Mbwambo's contention that the report was
not the basis for formulation of the charges and the subsequent disciplinary
proceedings against the appellant. The evidence is so plain that following the
issue of the report on 4th April, 2012, the same day the charges were formulated
against the appellant mirroring the essence of the allegations against him as
documented in the report. Having said that, now we deal with the admissibility,
authenticity and reliability of the report.
The appellant's claim that the report, being an email as asserted by DW2, could
only be admissible if it met the requirement of section 18 of the Electronic
Transactions Act, 2015 is clearly an afterthought. It was never raised before the
CMA when the document was tendered in evidence for the arbitrator to
determine if the document complied with the rules of authentication under the
said section. Nor was it brought to the attention of the High Court. Since the
appellant did not object to its admissibility at the time it was tendered, as shown
at page 112 of the record of appeal, we find no basis to entertain this belated
grievance.
As regards "authenticity of the report", it was contended that the report was
unauthentic because it was not made on official headed paper, that it lacked the
signature of its maker and that it lacked the official stamp of KK Security on
whose behalf DW2 submitted the report to the respondent. We think that this
contention is clearly misconceived. Since the maker of the report and the person
for whom it was intended did not disown it, the appellant's challenge against its
authenticity is inconsequential. It is significant that when DW2 was cross-
examined on this aspect, he maintained that the report was genuine and that he
sent it to the respondent by email.
On the contention that the report was implausible because it was not made by an
independent fact-finder, we would, at first, express our understanding of the
appellant's fears that DW2, being an official of KK Security in charge of his
company's operations at the respondent’s facilities, might have had an apparent
conflict of interest in the matter. However, in our view DW2 allayed all the fears
371
in cross-examination, shown at page 121 of the record of appeal, as he testified
that he made the report on behalf of KK Security in the normal course of business
as the contract for services between his company and the respondent required
the company to conduct investigation for its client and provide advice when
required to do so. It is within reason to expect KK Security to explain to its client
as to how the stealing occurred despite the use of high security locking devices
and an alarm system. At any rate, although two of its officials had been arrested
and investigated for the stealing along with five other persons, KK Security was
itself not brought to book.
The final contention that the report was based on hearsay is equally of no
moment. For the report apart from detailing the information received from a
Mul-T-Loc specialist that the two locking devices found at the scene and later
presented for examination were completely modified, it states that "the locks
easily appear to have been tampered with." It means the alleged modification
was visible upon examination of the locks. That said, the fourth ground of appeal
lacks merit.
We now deal with the fifth ground. It faults the learned Judge for allowing the
introduction of exhibits which were not part of the CMA's proceedings and that
she consequently, based on such objectionable documentary exhibits, held
wrongly that misconduct of negligence was proved.
It was Mr. Masha's submission on the fifth ground that the learned Judge
erroneously took into account what was contained in ''Exhibit A-3" that the
appellant admitted to have asked a subordinate to remove the faulty locking
device and that he did not cross-check if the said device was replaced. He
claimed that since the said exhibit was neither tendered nor received in the
evidence before the CMA it should not have been relied upon by the learned
Judge in determining the revision before her. To bolster his submission, he cited
the case of AAR Insurance (T) Ltd. v. Beatus Kisusi, Civil Appeal No. 67 of 2015
(unreported) for the proposition that it is the court, not the parties, which will
have to apply the law governing the admissibility of exhibits.
The complaint at hand need not detain us. It was fully answered by Mr.
Mbwambo that the learned Judge wrongly cited in her judgment Exhibit A-3 as
the source of the proof that the appellant admitted to have asked a subordinate
to remove the faulty locking device and that he did not cross- check if the said
device was replaced. The correct source of that evidence, according to Mr.
Mbwambo, is Exhibit TBL-4, which represents the minutes of the disciplinary
372
hearing against the appellant duly signed by Chairperson of the Disciplinary
Committee and the appellant. Having looked at said exhibit, shown at pages 84
and 85 of the record of appeal, we endorse Mr. Mbwambo's submission. The
learned Judge appears to have innocuously referred to Exhibit TBL-4 as Exhibit
A-3 but that was far cry from introducing a new exhibit into the evidence as
alleged by the appellant. The learned Judge rightly cited a portion of that exhibit,
at page 84 of the record, showing the “summary of evidence" at the disciplinary
hearing thus:
The employee admitted at the hearing that he did not verify to
(sic) the warehouse if the removed padlock was replaced even
on the day of incidence the new padlock was not seen.
In the premises, we find no fault in the approach and reasoning taken by the
learned Judge. We thus dismiss the fifth ground of appeal.
Next, we deal with the first, second and sixth grounds of appeal whose common
thread is the question whether the alleged negligence was established against the
appellant.
Submitting for the appellant, Mr. Mosha contended that there was no proof that
the appellant was responsible for ensuring that the malfunctioning locking
device was replaced in time and that he failed to do so. He added that even after
the faulty lock was removed and before a replacement was fixed, the warehouse
remained securely locked by the two remaining locks, one under the control of
the respondent and the other under KK Security's control and that stealing was
impossible without the keyholders from the respondent and KK Security
conspiring to do so. Furthermore, he argued that the appellant had a positive
performance appraisal two weeks after the stealing but the learned Judge ignored
the appraisal. Finally, the learned counsel was resolute that the learned Judge
erroneously acted on Exhibit A-3 as proof that the appellant admitted to have
neglected cross-checking if the defective lock was replaced or not. He contended
that the said Exhibit A-3 was non-existent.
Mr. Mbwambo, on the other hand, disagreed with his learned friend. He
contended that negligence was sufficiently established by the appellant's own
admission at the disciplinary hearing as shown by Exhibit TBL-4. He argued
further that the appellant's statement of defence dated 4th April, 2012 (Exhibit
TBL-2) at pages 42 to 46 of the record of appeal contains further incriminating
evidence. Moreover, he claimed that the appellant owned up his negligent
373
conduct in his testimony before the CMA as shown at pages 143, 144, 149 and
150 of the record of appeal.
It is undisputed that according to the applicable security protocol at the material
time, the warehouse in dispute had to be securely locked by using three Mul-T-
Loc locking devices two of which were controlled by the respondent's officials
and the other one was under the care and control of KK Security's staff. Both the
appellant and DW2 stated, in essence, that the protocol aimed at ensuring
complete security system at the warehouse. It is also without dispute that the
appellant was the supervisor of the warehouse in issue, a fact which he also
admitted in cross-examination at pages 143 and 144 of the record of appeal. It
was also common ground that the appellant removed the allegedly faulty locking
device on 25th February, 2012 with the view to replacing it. What was hotly
contested was whether the appellant had authority to do so and whether a
replacement was fixed on 27th February, 2012.
We noted earlier that the appellant was recorded at the disciplinary hearing, as
shown by Exhibit TBL-4, to have admitted that he did not double-check whether
a replacement was fixed and also conceded that the alleged replacement was not
found at the scene after the stealing had occurred. DW2's testimony and the
investigative report (Exhibit TBL-1) show that no replacement lock was found
at the scene after the stealing. We recall that the appellant claimed to have kept
his immediate supervisor, DW1, abreast of the matter but we wonder why DW1
was never cross- examined on that aspect. In fact, DW1 gave scathing evidence
against the appellant, blaming him for a negligent act that led to the stealing from
the warehouse. The appellant cited the statement of his assistant, Mr. Gambi, at
pages 37 and 38 of the record of appeal, as proof that a new lock was fixed on
27th February, 2012. We have seen that statement but Mr. Gambi was not called
to testify on the matter. Our view of the matter is, therefore, that the appellant
acted on his own, that he did not report the matter to his immediate supervisor,
that the removal of the lock was unauthorized and that no replacement locking
device was fixed.
We recall that the appellant contended that even in the absence of the
replacement lock the warehouse was securely locked by the two remaining
devices, one under the control of the respondent and the other under KK
Security's care and control, and, therefore, stealing would have been impossible
without the keyholders from the respondent and KK Security contriving to do
so. That might have been so. However, we think that the removal of the lock
374
without authorization was a serious breach of the security protocol and that it
undermined the level of security for the warehouse. It gives credence to the claim
in the investigative report that all the three locks were tampered with at an earlier
stage in preparation for the stealing. Accordingly, we find no merit in the first,
second and sixth grounds of appeal.
It is contended in the third ground of grievance that the appellant was charged
with one offence but his termination was wrongly founded upon another offence.
In his submission on the above ground, Mr. Mosha referred us to Exhibit TBL-
2, at pages 71 and 72 of the record of appeal, which he called "Memo/Charge."
He claimed that the said document charged the appellant with negligence, on the
first count, and collusion to commit theft, on the second count. However, when
the appellant was called for the disciplinary hearing, he was served with "notice
of hearing" (also marked as Exhibit TBL-4), at pages 80 to 83 of the record of
appeal, for the charge of negligence, on the first count, and causing financial
loss to the employer amounting to TZS. 65,003,940.00, on the second count. He
submitted that apart from the mismatch between the two documents, the letter of
termination (Exhibit TBL-5), at page 86 of the record of appeal, only cites
negligence as the offence the appellant was found to have committed. None of
the offences of collusion to commit theft and causing financial loss to the
employer amounting to TZS. 65,003,940.00 was mentioned. The learned counsel
contended that the offence of causing financial loss to the employer amounting
to TZS. 6 003,940.00 was belatedly and wrongly introduced as it was not part of
the original charge.
For the respondent, Mr. Mbwambo countered that Exhibit TBL-2 was not a
charge but a letter requiring the appellant to give a statement in defence
regarding the alleged sugar theft at the warehouse. After his statement was
received, charges preferred against him were presented in Exhibit TBL-4, which
also constituted "notice of hearing" for the disciplinary proceedings. Referring
to the letter of termination (Exhibit TBL-5), Mr. Mbwambo submitted that there
was nothing disquieting as the appellant's termination was stated to be based on
the offence of negligence of which he was convicted after a disciplinary hearing.
Having examined the exhibits referred to by the learned counsel, we are in
agreement with Mr. Mbwambo that the charges against the appellant were
preferred vide Exhibit TBL-4, not Exhibit TBL-3. The charges concerned
negligence, on the first count, and causing financial loss to the employer
amounting to TZS. 65,003,940.00, on the second count. The letter of termination
375
(Exhibit TBL-5) clearly indicates, at page 86 of the record of appeal, that the
appellant was convicted of the charged offence of negligence. There was no
mention of the outcome on the other count but that omission, in our view, is
inconsequential. For clarity, we extract the relevant part of the said letter thus:
After analyzing the charges and evidence provided by the
complainant, the Disciplinary Committee in consequence
decided and directed that you be terminated from service
with effect from the date of the hearing for contravening Item
3 of the Schedule of Serious Offences listed in the
Employment and Labour Relations (Code of Good
Practice) Rules, 2007 (G.N. No. 42 of 2007 and Clause ll(iv)
of the Tanzania Breweries Limited Managing Conduct
and Relationships at Work Place (Code of Good Practice)
that the offences (sic) of negligence in performing levelled
against you. [Emphasis added]
It should be noted that Item 3 of Serious Offences in the Schedule mentioned
above constituting serious misconduct leading to termination of an employee is
stated as “habitual, substantial or wilful negligence in the performance of
work.” The same misconduct is pigeon-holed under Rule 12 (3) (d) as gross
negligence. In the premises, we hold that the appellant was convicted of
negligence, which was the offence he faced on the first count. His complaint in
the third ground of appeal is, therefore, without any substance. We dismiss it.
Finally, we deal with the seventh ground which assails the learned Judge’s
decision to set aside the arbitrator’s award to the appellant for reinstatement
without loss of remuneration on the ground that it was not pleaded in the CMA
Form No. 1.
We think it would be helpful to flesh out the learned Judge’s reasoning for her
decision, as shown at page 319 of the record of appeal:
...I find that the arbitrator erred in granting reinstatement
without [considering] the respondent's prayers in his
CMA Form No. 1. Therefore, the award of reinstatement
without loss of remuneration is hereby quashed and set aside.
However, following the finding of this court that the
respondent's termination was substantively fair but
procedurally unfair this court is hereby ordering the
376
applicant to pay the respondent compensation of 12
months' salaries under section 40 (1) (c) of the ELRA, and
also to avail him with certificate of service. In addition, the
respondent is entitled to claim of terminal benefits such as
leave, notice and repatriation allowance if he was not paid.
[Emphasis added]
It is manifest from the above passage that the learned Judge vacated the CMA's
award of reinstatement without loss of remuneration on two grounds: one, that
the reinstatement was not prayed for; and two, that the termination having been
adjudged substantively fair but only procedurally unfair, reinstatement was
undeserved and thus the appellant was entitled to reduced compensation, which
the learned Judge set at 12 months' salaries in terms of section 40 (1) (c) of the
ELRA.
To be sure, the CMA Form No. 1 referred to above is the referral form previously
prescribed by the Employment and Labour Relations (Forms) Rules, 2007, G.N.
65 of 2007 under section 86 (1) of the ELRA for instituting a dispute before the
CMA. Currently, the form is prescribed by the Employment and Labour
Relations (General) Regulations, 2017, G.N. 45 of 2017. In the instant case, it is
without dispute that the appellant prayed in his referral form, as shown at pages
9 and 10 of the record of appeal, for the following reliefs:
1. Compensation under s. 40 (1) (c) of the ELRA equivalent
to two years' salaries.
2. Compensation under s. 40 (2) of the ELRA for unpaid
salaries and other benefits from the date of termination to
payment
3. Payment of TShs. 50,000,000.00 as damages for injury of
my reputation, character and carrier (sic).
4. Compensation under s. 40 (2) of the ELRA of TShs.
10,000,000.00 as legal fees to my advocate.
5. A clean certificate of service under s. 44 (2) of the ELRA.
6. Repatriation costs of 3,000 kgs (sic) for Dar es Salaam to
Bukoba at TShs. 6,000,000.00.
N.B. Reinstatement would be cumbersome because of
intolerable behaviour shown the company's personnel.
377
While the appellant had acknowledged in the referral form that his reinstatement
would be cumbersome and, on that reason, he left it out in his prayers, he
changed his tack in his opening statement before the arbitrator, shown at pages
19 to 24, by praying for it along with new or enhanced claims for subsistence
allowance and reparation for wrongful termination and defamation in the sum of
TZS. 100,000,000.00.
In his submission, Mr. Mosha cited the decision of Frederick J. Chacha v. Stemo
Security Co. Ltd., Labour Revision No. 92 of 2011 (unreported) rendered by the
High Court, Labour Division (Wambura, J.) for the proposition that an arbitrator
can consider and grant reliefs not prayed for in the referral form but arrived at
based on issues framed following the mediator's certificate and disclosed by the
parties in their opening statements. Conversely, Mr. Mbwambo argued that the
arbitrator should not have granted a relief which the appellant had not prayed for
in the referral form.
The issue before us is whether or not the award of twelve months' remuneration
by the learned Judge instead of reinstatement without loss of remuneration was
justified.
The determination of remedies for unfair termination is governed by section 40
(1) of the ELRA, which provides as follows:
40.-(1) 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 of 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 of not less than twelve
months remuneration.
The above provision vests in an arbitrator or the High Court, Labour Division
the discretion to determine the appropriate remedy to be granted following a
finding of unfair termination against the employer. Certainly, such discretion
must be exercised judiciously, not capriciously. Generally, where the
termination is adjudged unfair on procedural grounds only, an arbitrator or the
High Court, Labour Division will award compensation under section 40 (1) (c)
378
of the ELRA as opposed reinstatement or re-engagement under section 40
(1) (a) and (b) respectively of the ELRA. But if the termination is held to
be both substantively and procedurally unfair, it will be fitting to order
reinstatement without loss of remuneration unless there are justifiable grounds
for not doing so in terms of Rule 32 (2) of the Labour Institutions (Mediation
and Arbitration Guidelines) Rules, 2007, G.N. 67 of 2007 ("the Guidelines
Rules").
In the instant case, we find no basis to interfere with the learned Judge's award.
First and foremost, she was justified to vacate the order for reinstatement on the
ground that it was not prayed for in the referral form. It is settled that generally
an arbitrator or the High Court, Labour Division has no jurisdiction to grant a
relief which is not prayed for in the referral form, the said form being understood
synonymously with a plaint - see Security Group {T) Ltd. v. Samson Yakobo &
Ten Others, Civil Appeal No. 76 of 2016; and Dew Drop Co. Ltd v. Ibrahim
Simwanza, Civil Appeal No. 244 of 2020 (both unreported). We read the
decision of the High Court, Labour Division in Frederick J. Chacha (supra),
relied upon by the appellant, but obviously it is not binding on us. We are aware
that the same court (Aboud, J.) in SDV Transami (T) Limited v. Faustine L.
Mugwe, Revision No. 227 of 2016 (unreported) took a different view, of which
we approve. That in exercising his discretion under section 40 (1) of the ELRA,
the arbitrator must confine himself to the prayers made in the referral form. In
the instant case, the appellant should not have been allowed to depart from the
referral form and introduce new or markedly enhanced reliefs in his opening
statement. However, we hasten to say that terminal benefits and a certificate of
service pursuant to section 44 (1) and (2) of the ELRA can be made, subject to
proof, even if they had not been claimed in the referral form. For, they constitute
non-discretionary statutory entitlements.
Likewise, we endorse the learned Judge's holding that the order for reinstatement
was additionally erroneous on the ground that the said relief was unmerited
following the termination being held substantively fair but unfair on procedural
grounds only.
Finally, apart from the appellant's shifting positions in the referral form and his
opening statement on the aforesaid relief, he acknowledged in his testimony, at
page 141 of the record of appeal that the circumstances surrounding his
termination were such that a continued employment relationship would be
intolerable. This makes us wonder why he yet again pressed for reinstatement.
379
Indeed, Rule 32 (2) (a) of the Guidelines Rules enjoins the arbitrator not to order
reinstatement or re- engagement where the employee does not wish to be
reinstated or re- engaged. Based on the law and the appellant's own admission,
reinstatement was clearly inapposite even if the termination had been held to be
substantively and procedurally unfair. That said, the seventh ground of appeal
fails. In the final analysis, we hold that the appeal is unmerited. We dismiss it in
its entirety.
Appeal dismised
MANTRA TANZANIA LIMITED v. JOAQUIM BONAVENTURE

AT DAR ES SALAAM
(MWARIJA, MWAMBEGELE, and KEREFU, JJ.A.)
(Appeal from the Judgment and Decree of the High Court of Tanzania (Labour
Division) at Dar es Salaam, Nyerere, J., dated 6th April, 2018 in Consolidated
Revision Nos. 137 & 151 of 2017)
Reliefs – High Court finds that the respondent was substantively and
procedurally unfairly terminated – High Court does not grant the respondent's
prayer for reinstatement which was one of the reliefs sought in CMA Form No.1-
Whether High Court’s decision was irregular – section 40 (1) of the ELRA.
The respondent was an employee of the appellant, in the position of Finance and
Administration Manager. His employment was terminated following the
decision of the Disciplinary Committee in which the respondent was found guilty
on the allegation that he misappropriated his employer's funds. The matter was
successfully referred to CMA by the respondent. Aggrieved by the decision of
the CMA, the appellant applied for revision before the High Court, Labour
Division. The Labour Court found in favour of the respondent hence, this appeal
by the appellant employer.
Held: i) Under s. 40 (1) of the ELRA, reinstatement to employment is one of the
remedies which an employee may be granted when it is found that he was
unfairly terminated from his employment. Where a respondent prays for that
relief, it is imperative that, after having found that termination was substantially
380
and procedurally unfair, the High Court ought to consider whether to grant that
relief.
ii) The omission to consider whether to grant the relief sought by the respondent
vitiates the impugned decision because it leaves that crucial issue undetermined.
iii) It is trite principle that when an issue which is relevant in resolving the
parties' dispute is not decided, an appellate court cannot step into the shoes of
the lower court and assume that duty. The remedy is to remit the case to that
court for it to consider and determine the matter.
Judgment quashed
Cases referred to
(1) Henry Hidaya Ilanga v. Manyema Manyoka [1961] E.A. 705,
(2) Elia Kasalile and 17 others v. Institute of Social Work; Civil Application
No. 187/18 of 2018
(3) National Microfinance Bank v. Leila Mringo and 2 others; Civil Appeal
No. 30 of 2018
(4) Truck Freight (T) Ltd v. CRDB Ltd; Civil Application no. 157 of 2007

(1) Section 40 (1) of the Employment and Labour Relations Act; No.
6 of 2004.
(2) Rule 94 (1), (2) and (3) of the Tanzania Court of Appeal Rules, 2009
(3) Section 40 (2) of the Employment and Labour Relations Act; No.
6 of 2004.
(4) Section 43 (1) (c) of the Employment and Labour Relations Act; No. 6 of
2004
(5) Regulation 16 (1) & (2) of the Employment and Labour Relations
(General) Regulations, GN No. 47 of 2017
Messrs. Vedasto and Vitalis, for Appellant

Mr. Rweyongeza, for Respondent

381
MWARIJA, J.A.: The respondent, Joaquim Bonaventure was an employee of
the appellant, Mantra Tanzania Limited. He was employed on 15/6/2007 in the
position of Finance and Administration Manager. On 30/11/2013 he was
terminated from employment. His termination resulted from the decision of the
Disciplinary Committee of the appellant/employer (the Committee) in which the
respondent was found guilty of two, out of four disciplinary charges leveled
against him. The charges were based on the allegation that he had
misappropriated his employer's funds. The Committee was satisfied, first, that
the respondent spent his employer's money amounting to TZS 4,205,353.00 in
paying a company known as Network Freight forwarders an import duty for his
private motor vehicle without the appellant's authorization. It found further that,
the respondent had instructed the said Network Freight Forwarders to process
his motor vehicle's import duty clearance documents in the name of the
appellant. Secondly, the Committee found that the respondent did also take TZS
1,400,000.00 from the appellant's funds and used it to pay Insurance Premium
for his private motor vehicle without prior authorization from the appellant.
The respondent was dissatisfied with his termination and therefore lodged a
complaint before the Commission for Mediation and Arbitration (the CMA). He
complained that he was unfairly terminated and prayed for an order reinstating
him to his employment and payment of all his employment entitlements and
benefits.
In its decision, the CMA held that, although the respondent's termination was
substantially fair, it was procedurally unfair in that, he was not given sufficient
notice of hearing to enable him prepare himself for the hearing before the
Committee. As a result, the CMA proceeded to award him terminal benefits in
terms of compensation, repatriation expenses and subsistence allowance. In the
whole, he was awarded a total of TZS 908,148,563.00.
Aggrieved by the award made by the CMA in favour of the respondent, the
appellant applied for revision before the High Court (Labour Division); Revision
No. 137 of 2017. The appellant challenged the CMA's finding that the
respondent was unfairly terminated as well as the quantum of the award. On his
part, the respondent was also dissatisfied with the finding of the CMA that his
termination was substantially fair. He thus filed Revision No. 151 of 2017. The
two revisions were consolidated and heard together.
In its decision, the High Court disagreed with the finding of the CMA that the
respondent's termination was substantially fair. The learned High Court Judge
382
was of the view that the respondent acted bona fide in using his employer's
money to pay the import duty and insurance premium for his personal motor
vehicle because he was, by the company’s practice, allowed to use the
appellant’s funds provided that he refunds the spent amount timely. On that
finding, the learned Judge reversed the decision of the CMA to the effect that the
respondent's termination was substantially unfair. She thus held that the
respondent's termination was without valid reasons.
On the procedure which was adopted during the hearing before the Committee,
the learned Judge upheld the finding of the CMA that the same was against the
laid down rules. She agreed with the Arbitrator that the respondent was not given
sufficient notice before the hearing. She upheld the finding that he was given
only a one day's notice instead of two days’ period prescribed under rule 13 (3)
of the Employment and Labour Relations (Code of Good Practice) Rules, 2007.
Having so found, the High Court awarded the respondent a total of TZS
412,780,000.00 comprising of compensation of 12 months' salaries amounting
to TZS 113,520,000.00 for unfair termination, one months' salary of TZS
9,460,000.00 in lieu of notice and subsistence allowance of TZS 270,000,000.00.
The appellant was aggrieved by the decision of the High Court hence this appeal
in which, by its memorandum of appeal lodged on 28/8/2018, has raised 7
grounds of appeal as follows:
1. That unlike the Arbitrator, the High Court Judge having

failed to properly analyse and examine evidence on
record, grossly erred in fact and in law, in deciding to the
effect that the Respondent's acts of misappropriating the
Employer's (Appellant's) money did not amount to a
misconduct within the meaning of the law or the Appellant's
policy and thus concluded that the termination of the
Respondent's contract of employment was for no valid
reasons.
2. That like the Arbitrator, the High Court Judge having failed
to properly analyse and examine evidence on record,
erred in law to decide to the effect that the termination of
the Respondent's contract of employment was procedurally
unfair due to giving a short notice for the Respondent to
attend a disciplinary hearing, despite the glaring evidence
383
on record to show that such alleged short notice was not
prejudicial to the Respondent's case.
3. That like the Arbitrator, the High Court Judge having failed
to properly evaluate facts of the case, in deciding as she
did pertaining to the discretional powers of the Court to
determine the amount of compensation, erred in law in not
making a finding that given the facts of this case the
Respondent was not entitled to any compensation.
4. That the High Court Judge having misconceived the law
pertaining to pleadings relating to the matter to be referred
to the Commission for Mediation and Arbitration (CMA),
erred in law in concluding to the effect that once an
employee alleges unfair termination in the CMA FORM
NO. 1, that, for all purposes of pleadings, means and
encompassed everything which would be considered to be
invalid reason or/and procedurally unfair.
5. That the High Court Judge erred in law in upholding a
finding of the Arbitrator on a matter relating to
procedurally unfair termination despite of oblivious deviation
from the pleadings (CMA FORM NO. 1).
6. That like the Arbitrator, the High Court Judge erred in law
in entertaining and deciding on some crucial issues to
the merits of the case basing on matters not forming part of the
pleadings, and without considering the fact that the same
were brought in the Commission out of the prescribed time
under the law.
7. That like the Arbitrator, in deciding on the issue relating to
repatriation and subsistence allowances in the way and
manner, the High Court Judge erred in law and in fact not
considering the fact that the Respondent bears a blame for
his unwarrantable delay to submit to the Appellant his
claims for such allowances, and as such not entitled to such
colossal amount of money as it was ordered by the High
Court Judge.
At the hearing however, the appellant's counsel abandoned the 2nd ground of
appeal and argued the remaining grounds.
384
Upon being served with the record and memorandum of appeal, the respondent
filed a notice in terms of Rule 94 (1), (2) and (3) of the Tanzania Court of Appeal
Rules, 2009 as amended, in which he raised a cross appeal consisting of the
following four grounds:
1. That the Trial Judge made an error in law by failing to grant
the relief of reinstatement as sought by the
Respondent/Complainant at CMA through CMA Form No. 1
even after holding that the Respondent's termination of
employment was substantively and procedurally unfair.
The relief of compensation was awarded contrary to Section
40 (2) of the Employment and Labour Relations Act;
No. 6 of 2004.
2. That the Trial Judge made an error in law by awarding a
compensation of twelve (12) months only to the
Respondent without regard to the provisions of Section 40 (2)
and (3) of the Employment and Labour Relations Act,
No. 6 of 2004 which required the Appellant to pay the
Respondent an amount of twelve (12) months wages in
addition to wages due and other benefits if the Appellant
refuses to reinstate the Respondent
3. That the Trial Judge made an error in law by reducing the
rate of subsistence allowance to the tune of TSHS.
150,000/= per day contrary to the applicable calculation
formula provided under Section 43 (1) (c) of the
Employment and Labour Relations Act; No. 6 of
2004 and Regulation 16 (1) & (2) of the Employment and
Labour Relations (General) Regulations, GN No. 47 of
2017.
4. That the Trial Judge made an erred in law by failing to
award the Respondent his basic wage of TZS
11/311/359.00 and other legal entitlements thereto.
At the hearing of the appeal, the appellant was represented by Mr. Audax
Vedasto, who was being assisted by Mr. Timon Vitalis, learned advocates. On
his part, the respondent had the services of Mr. Richard Rweyongeza, learned
advocate.
385
As alluded to above, whereas the appellant has raised seven grounds of appeal,
the respondent predicated his cross-appeal on four grounds. For reasons which
will be apparent herein, we do not intend to consider each of the grounds raised
by the parties in their respective appeals. We say so because of the pertinent
issue raised by the respondent in ground 1 of his cross-appeal. Submitting in
support of that ground of the cross- appeal, Mr. Rweyongeza argued that, after
having found that the respondent's termination was both substantially and
procedurally unfair, the learned High Court Judge was enjoined to grant the
reliefs sought by the respondent in his Referral of Dispute to the CMA form
(CMA Form No. 1). Relying on the provisions of s. 40 (1) and (2) of the
Employment and Labour Relations Act [Cap. 366 R.E. 2019] (the ELRA), the
learned counsel stressed that the High Court erred in awarding compensation of
12 months' remuneration instead of granting the respondent's prayer for
reinstatement and other consequential reliefs provided for under those provisions
of the ELRA.
In response, Mr. Vedasto conceded that the High Court did not consider the
respondent's prayer for reinstatement although he sought an order to that effect
in his CMA Form 1. The learned counsel argued however, that the High Court
properly exercised its discretion under s. 40 of the ELRA thereby awarding
compensation to the respondent instead of reinstating him to his employment.
According to the learned counsel, it was due to the cause of the respondent's
termination and the nature of his employment which formed the basis of the High
Court’s decision. To bolster his argument, Mr. Vedasto cited the cases of Henry
Hidaya Ilanga v. Manyema Manyoka [1961] E.A. 705, Elia Kasalile and 17
others v. Institute of Social Work; Civil Application No. 187/18 of 2018 and
National Microfinance Bank v. Leila Mringo and 2 others; Civil Appeal No. 30
of 2018 (both unreported).
From the record and the submissions of the counsel for the parties, there is no
dispute that in his CMA Form No. 1, the respondent complained that he was
unfairly terminated and sought, among other reliefs, an order reinstating him to
his employment. In paragraph 4 thereof which requires the party referring a
dispute to the CMA to state the outcome which he seeks to obtain, he indicated
that he was seeking the following reliefs:
- Reinstatement.
- Payment of contractual benefits.
386
- All other legal benefits including allowances
etc.[Emphasis added]
There is also no dispute that, although in its decision, apart from upholding the
CMA's finding that the respondent's termination was procedurally unfair, the
High Court found also that the termination was substantially unfair because the
CMA erred in finding him guilty of the disciplinary charges levelled against him.
Despite that finding, the High Court did not consider the respondent's prayer for
reinstatement which was one of the reliefs sought in CMA Form No. 1. Under s.
40 (1) of the ELRA, reinstatement to employment is one of the remedies which
an employee may be granted when it is found that he was unfairly terminated
from his employment. Since the respondent had prayed for that relief, it is
imperative that, after having found that his termination was substantially and
procedurally unfair, the High Court ought to have considered whether or not to
grant that relief.
In our considered view therefore, by omitting to do so, the High Court strayed
into an error. The argument by Mr. Vedasto that the learned High Court Judge
properly exercised her discretion in granting compensation to the respondent
instead of ordering his reinstatement is with respect, incorrect. This is because
of the obvious reason that the learned Judge did not at all consider that crucial
issue and therefore, the question of exercise of discretion does not arise.
That said and done, our next task is to consider the effect of the irregularity and
make a decision on the way forward. In our considered view, the omission to
consider whether or not to grant the relief sought by the respondent vitiated the
impugned decision because it left that crucial issue undetermined. It is for this
reason that, as stated above, the need for considering the grounds of appeal and
the other grounds of the cross-appeal does not arise.
On the way forward, it is trite principle that when an issue which is relevant in
resolving the parties' dispute is not decided, an appellate court cannot step into
the shoes of the lower court and assume that duty. The remedy is to remit the
case to that court for it to consider and determine the matter. For instance, in the
case of Truck Freight (T) Ltd v. CRDB Ltd; Civil Application no. 157 of 2007
(unreported), the Court held as follows:
If the lower court did not resolve the controversy between the
parties, rightly or wrongly, what can an appellate court do?
387
We cannot step into its shoes. We therefore, allow the appeal
and quash the decision.... We order that he (the trial Judge)
either decides the issues which were framed and agreed upon
by the patties or if he is of the firm opinion that the issue of
the governing law on execution of what is crucially important
for the just determination of the suit, then he should re-open
the hearing and let both learned counsel address him.
In another case, Alnoor Shariff Jamal v. Bahadur Ebrahim Shamji, Civil Appeal
No. 25 of 2006 (unreported), the appellant filed a petition in the High Court
(Commercial Division) seeking extension of time within which to file a petition
to set aside the award of the Sole Arbitrator. In its decision, the High Court
invoked the provisions of Art 107A and 107B of the Constitution of the United
Republic of Tanzania as well as the court's inherent powers under s. 95 of the
Civil Procedure Code [Cap. 33 R.E. 2002] (now R.E. 2019) and proceeded to
remit the Award to the Sole Arbitrator to reconsider the time within which the
appellant was to pay the awarded amount. The High Court did not determine
whether or not there was sufficient ground for granting the appellant extension
of time to set aside the Arbitration's award, which was the crucial issue before
it.
The Court held that the omission was a fatal error. It observed as follows as
regards the exercise by the High Court, of its inherent powers to decide the
petition while abandoning the matter which was before it for determination:
… the argument that the Judge was empowered to use the
court's inherent powers to remit the Award for reconsideration
does not hold water because as we have already said earlier
the use of inherent powers is not intended to do away with
basic principles governing court proceedings.
Like in the Truck Freight case (supra), the Court made an order remitting the
case to the High Court for it to proceed to determine the crucial issue which in
that case, was whether or not there was sufficient cause for granting the
appellant's petition for extension of time to set aside the Award of the Sole
Arbitrator.
The circumstances of the present case are similar to those of the cases cited
above. In the circumstances, having found that the omission vitiated the
impugned decision, we hereby quash that judgment and remit the case to the
388
High Court for it to render a decision after having considered the reliefs sought
by the respondent. Since this appeal arises from a labour dispute, we make no
order as to costs.
Judgment quashed
MANTRA TANZANIA LIMITED v. JOAQUIM P.

BONAVENTURE
AT DAR ES SALAAM
(MWARIJA, LEVIRA and MWAMPASHI, JJ.A.)

(Application for review of the decision of the Court of Appeal of Tanzania at
Dar es Salaam, Mwarija, Mwambegele and Kerefu, JJ.A., dated 17th July, 2020
in Civil Appeal No. 145 of 2018
Review – ground for review – apparent error on face of the decision leading to
miscarriage of justice under rule 66(1)(a) of the Rules – factors to be considered
thereto.
Court practice – rules goverining litigation in labour matters – powers of the
court in procedural matters.
The respondent was employed by the applicant as a Finance and Administration
Manager. His employment was terminated on two disciplinary charges relating
to misappropriation of company's funds by the applicant's Disciplinary
Committee. Aggrieved by the applicant's decision, he filed a labour complaint
with the CMA praying for reinstatement, payment of terminal benefits and other
legal benefits including allowances. Having heard the parties, the CMA decided
that the termination of the respondent was substantially fair but procedurally
unfair. Aggrieved by that decision, the applicant applied for revision before the
High Court (Labour Division) (Nyerere, J.) vide Revision No. 137 of 2017,
challenging the CMA finding that the respondent was unfairly terminated and
the consequential award. On his part, the respondent was also dissatisfied by the
389
decision of the CMA that he was substantially terminated fairly, and thus lodged
Revision No. 151 of 2017 to challenge the same. During hearing, the High Court
consolidated both applications (No. 137 and 151 of 2017). In its judgment, the
High Court found that the respondent was unfairly terminated both, substantially
and procedurally. The applicant was aggrieved again by the decision of the High
Court and thus she appealed to the Court vide Civil Appeal No. 145 of 2018.
However, her appeal to the Court met an obstacle as the Court found that the
High Court did not consider the respondent's prayer for reinstatement which was
one of the reliefs sought in CMA Form No. 1 and that the omission vitiated the
impugned decision. The Court quashed that judgment and remitted the case to
the High Court for it to render a decision after having considered the reliefs
sought by the respondent. The applicant was not satisfied by that decision and
thus it has come before the Court moving us to review our decision on the ground
of manifest error on the face of the record resulting in the miscarriage of justice
against the applicant.
Held: (i) It is not just enough to claim that the decision of the Court is based on
a manifest error on the face of the record resulting in the miscarriage of justice;
but it is the duty of the one who claims so to point to the said error and submit
on how it occasioned miscarriage of justice on his part.
(ii) The law is settled that any error complained of must be obvious and patent
mistake and not something which can be established by a long- drawn process
of reasoning or arguing on points which there may conceivably be two opinions.
(iii) It is not upon the litigants and/or their counsel to direct the court on what
and how to decide the matters presented before it, but the court is obliged to
decide matters presented to it in accordance with the law on the prevailing
circumstances of each case.
Cases refereed to
(1) Tanganyika Land Agency Limited and 7 Others v. Manohar Lal Aggrwal,
(2) Eshie Mossy Mbaruku v. Bi Kungwa Rajah, Civil Appeal No. 58 of 2013

(1) Section 4(4) of the Appellate Jurisdiction Act Cap. 141 R.E. 2019;
390
(2) Rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009
(3) Section 40 of the Employment and Labour Relations Act, [Cap 366 R.E.
2019]
Mr. Vedasto, and Ms. Rwehumbiza, for Applicant

Messrs. Rweyongeza and Mbwambo, for Respondent.
RULING OF THE COURT

3rd August, 2021
LEVIRA, J.A.: This is an application for review of the decision of the Court in
Civil Appeal No. 145 of 2018 delivered on 17th July, 2020. It is brought by way
of notice of motion made under the provisions of section 4(4) of the Appellate
Jurisdiction Act Cap. 141 R.E. 2019 (the AJA) and Rule 66 (1) (a) of the
Tanzania Court of Appeal Rules, 2009 as amended (the Rules). The notice of
motion is supported by the affidavit of Audax Kahendanguza Vedasto, counsel
for the applicant. The application is strongly opposed by the respondent who also
filed affidavit in reply.
Briefly, the background of this application can be traced from the relationship
which existed between the parties herein. The respondent was employed by the
applicant on 15th June, 2007 as a Finance and Administration Manager.
However, his employment did not last long as on 30th November, 2013 he was
terminated from the employment as he was found guilty of two disciplinary
charges relating to misappropriation of company's funds by the applicant's
Disciplinary Committee. Aggrieved by the applicant's decision, he filed a labour
complaint with the Commission for Mediation and Arbitration (the CMA)
praying for reinstatement, payment of terminal benefits and other legal benefits
including allowances. Having heard the parties, the CMA decided that the
termination of the respondent was substantially fair but procedurally unfair. As
a result, he was awarded terminal benefits including compensation, repatriation
expenses and subsistence allowance.
Aggrieved by that decision, the applicant applied for revision before the High
Court (Labour Division) (Nyerere, J.) vide Revision No. 137 of 2017. She
challenged the CMA finding that the respondent was unfairly terminated and the
consequential award. On his part, the respondent was also dissatisfied by the
decision of the CMA that he was substantially terminated fairly, and thus lodged
391
Revision No. 151 of 2017 to challenge the same. During hearing, the High Court
consolidated both applications (No. 137 and 151 of 2017). In its judgment, the
High Court found that the respondent was unfairly terminated both, substantially
and procedurally. Therefore, it confirmed the decision of the CMA in regard to
the procedure used to terminate the respondent that it was unfair and also partly
reversed it having found that termination was as well substantially unfair. The
applicant was therefore ordered to pay the respondent Tshs. 113,520,000/= (12
months salaries) being compensation for unfair termination; Tshs. 9,460,000/=
one month salary in lieu of notice; Repatriation allowance Tshs. 19,800,000/=
and subsistence expenses of Tshs. 270,000,000/= making the total of
412,780,000/=.
The applicant was aggrieved again by the decision of the High Court and thus
she appealed to the Court vide Civil Appeal No. 145 of 2018. However, her
appeal to the Court met an obstacle as the Court found that the High Court did
not consider the respondent's prayer for reinstatement which was one of the
reliefs sought in CMA Form No. 1 and that the omission vitiated the impugned
decision. The Court quashed that judgment and remitted the case to the High
Court for it to render a decision after having considered the reliefs sought by the
respondent. The applicant was not satisfied by that decision and thus it has come
before the Court moving us to review our decision on the ground of manifest
error on the face of the record resulting in the miscarriage of justice against the
applicant committed in the following ways:
(a) That towards making an order to "quash... (the) (sic) judgment and
remit the case to the High Court for it to render a decision this
Honourable Court overlooked the fact that it was only part of the relief
part on that Judgment of the High Court which it had found defective;
(b) That towards faulting the High Court for not considering the relief of
reinstatement in its Judgment, this Honourable Court overlooked the
fact that such relief was not among the reliefs requested by the
Respondent in the Revision filed by the Respondent in the High Court
to remedy;
(c) That towards directing the case to be remitted to the High Court on
account of the High Court's omission to rule on the relief of
reinstatement was coming into play only if and after the court found
that the termination of employment of the Respondent by the
Applicant was unfair, this Honourable Court overlooked the fact that
392
fairness or unfairness of the termination was being questioned in the
appeal before it and had not, was not, and has not been, determined.
At the hearing of this review, the applicant was represented by Mr. Audax
Kahendaguza Vedasto learned advocate assisted by Ms. Dua Mbapila
Rwehumbiza also learned advocate; whereas the respondent had the services of
Mr. Richard Rweyongeza learned advocate who was assisted by Mr. Rahim
Mbwambo, also learned advocate.
Mr. Vedasto commenced his submission in support of the application by
adopting the notice of motion, supporting affidavit and the applicant's written
submissions filed in Court on 12th November, 2020 to be part of his oral
submission. Having done so, he proceeded to argue the above three reproduced
grounds.
Regarding the first ground, Mr. Vedasto submitted that the Court made an error
in the judgment because its conclusion was contrary to the reasoning. According
to him, the error was based on the finding of the High Court that the respondent
was unfairly terminated both procedurally and substantially. Therefore, the
Court quashed that judgment and remitted the case to the High Court for it to
render a decision after having considered the reliefs sought by the respondent as
it can be seen at page 110 of the record of the application. In the written
submissions, the applicant lamented that there was an error on the face of the
record because the Court was not justified to quash everything even the part of
judgment which had nothing to do with that relief. In so doing, he said, the Court
did not exercise its full mind to the effect of the order it made and be satisfied
with its outcome. He thus argued that the order should be varied to remove
extraneous materials and focus on reinstatement or specify the part which is to
be quashed. He amplified further that the High Court should have been directed
on what to do. In support of his argument, he cited the case of Tanganyika Land
Agency Limited and 7 Others v. Manohar Lal Aggrwal, Civil Application No.
17 of 2008 (unreported). Therefore, he urged us to find that the first ground
raised is an apparent error on the face of record.
As regards the second ground of review, Mr. Vedasto argued that the Court in
its decision overlooked the fact that the prayer for reinstatement was not made
before the High Court. The same, he said, was prayed before the CMA but it was
refused. Therefore, the High Court could not be justified to deal with it since it
was rejected in the first instance. Bolstering his argument, he cited the case of as
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Eshie Mossy Mbaruku v. Bi Kungwa Rajah, Civil Appeal No. 58 of 2013
(unreported).
Submitting on the third ground of review, Mr. Vedasto argued that reinstatement
is a consequential relief after determination of whether or not the termination
was fair, a question which was not determined by the Court. Therefore, it was an
error on the face of record for the Court to order the High Court to consider
reinstatement. He argued further that the law is settled that no decision is to be
set aside by this Court without satisfying itself that the error affects the merits of
the case. To back up his argument he cited Rule 115 of the Rules. He added that
the Court missed the above clear provision of the law when it quashed the
decision of the High Court for not deciding the issue of reinstatement before
satisfying itself whether or not that issue has any effect on the merit of the case.
He concluded that this is a reviewable error.
In reply, Mr. Rweyongoza gave a general overview of what is provided under
Rule 66 (1) (a) of the Rules upon which the current application is based. He as
well stated that having gone through the entire record of the application he could
not find a manifest error on the face of record. According to him, it seems the
applicant was not satisfied with the decision of the Court. In addition, he said,
the applicant did not explain on how the alleged error leads to the miscarriage of
justice. As for him, the decision of the Court was a result of parties presentations
on section 40 of the Employment and Labour Relations Act, [Cap 366 R.E. 2019]
(the ELRA). He insisted that the High Court did not consider reinstatement, and
the current application is nothing but an appeal through the back door (an appeal
in disguise).
Responding on the applicability of Rule 115 cited by Mr. Vedasto, he submitted
that the said Rule is on errors which do not go to the root of the case, and thus
reliefs do not fall under that provision. As for him that provision was cited out
of context and the application at hand is a delaying tactics for the respondent to
enjoy his rights.
Adding to what was submitted by Mr. Rweyongeza, Mr. Mbwambo stated that
the respondent resists this application on the ground that the applicant failed to
meet the requirements under Rule 66 of the Rules.
He adopted respondent's written submissions to form part of his oral submission
and continued to argue the application. He stated that for an error to be
considered apparent on the face of record, it must be obvious and patent to the
394
extent of not requiring any elaborate opinion or two opinions. He cited the case
of Tanganyika Land Agency (supra) and Chandrakant Joshubhai Patel v. R.
[2004] T.L.R. 218 to support his position.
Mr. Mbwambo went on stating that, in the application before us there is no
apparent error shown in the grounds and when looked at closely, they form more
than one opinion. He said for instance, the argument on the act of the Court
quashing the High Court judgment and ordering it to consider reinstatement, two
or more opinion may arise. One, whether the Court has powers to quash only
part of the judgment, if yes, is it proper for the Court to have two judgments to
stand. So, he said, this ground of review does not fall under Rule 66 (1) (a) of
the Rules.
As for the second ground of review, Mr. Mbwambo argued this is a pure ground
of appeal. He added, the prayer for reinstatement was made at page 53 of the
record of the application. However, he said, even if it was not there, the High
Court could have determined on it as it was bound to determine the reliefs prayed
before the CMA as the same is statutory regardless whether or not they were
prayed for.
Submitting on the applicant's argument that the Court could have determined the
appeal first on whether or not the termination was fair before ordering the High
Court to consider reinstatement, Mr. Mbwambo stated that the Court could not
proceed with the incomplete judgment. Either, the Court could not quash part of
the judgment, even if it was only part of it having problems. The whole judgment
is to be quashed, he insisted. He concluded by stating that the present application
is unmerited and frivolous and therefore, it should be dismissed with costs.
Mr. Vedasto made a brief rejoinder by first conceding that the aspect of
“injustice” as provided under Rule 66 (1) (a) of the Rules has not been discussed
by the applicant. On the second ground of application, he said that reinstatement
was not considered in the High Court as the applicant did not pray for it, so it
will be unjust for the employer (applicant) to be ordered in that aspect despite
the fact that section 40 of the ELRA provides for the same. He insisted that, the
High Court is not required to consider what was pleaded in the CMA.
Regarding the issue that the applicant has not been able to show an apparent error
on the face of record, Mr. Vedasto stated that Rule 66 (1) of the Rules does not
go deep to mention errors. Therefore, he said, the applicant has been able to show
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the errors at page 34 of the record by showing that the Court made a conclusion
beyond its reasoning.
In relation to the third ground of review he said, that the Court failed to consider
what is provided under Rule 115 of the Rules.
He was of the firm view that having discovered that the High Court did not
consider the relief of reinstatement it could have returned the judgment for the
High Court to correct the error and return it back to the Court to determine the
appeal.
As far as costs are concerned, he stated that the application is not frivolous as
the applicant has tried to show the error committed and was able to cite law and
decided cases. He emphasized that Rule 115 is relevant to the current application
as the Court is required to correct the error that can affect the other part of the
decision. However, he said, the Court did not decide on whether the termination
was fair. Finally, he urged us to grant the application.
We have dispassionately considered the notice of motion, supporting affidavit,
the affidavit in reply and submissions by counsel for parties. The question for
our determination is whether there is an apparent error on the face of the decision
of the Court leading to miscarriage of justice in terms of Rule 66 (1) (a) of the
Rules under which this application is brought. For ease of reference the said Rule
provides as follows:
66 (1) The Court may review its judgment or order but no
following grounds - (a) the decision was based on a manifest
error on the face of the record resulting in the miscarriage of
justice.
Claiming under the above provision of the law, the applicant contended in the
first ground of review that the decision of the Court nullifying the whole
judgment of the High Court was based on a manifest error on the face of it. In
his argument as it can be seen above, the counsel for the applicant went further
to insist that the Court ought to have remitted the case file to the High Court and
directed the latter court to consider that remedy and send it back to the Court to
determine whether or not the termination was fair both procedurally and
substantially as decided by the High Court. This argument was vehemently
opposed by the counsel for the respondent on account that the Court could not
work on incomplete judgment and quash part of it as the applicant would wish.
396
We wish to state right away that this ground of review is misconceived. With
respect, it is our considered view that the applicant is trying to challenge the
decision of the Court instead of indicating the purported error forgetting that this
is a review and not an appeal. It is interesting to note that apart from making a
bare claim that the decision of the Court was based on apparent error, the
applicant failed to establish how the purported error resulted in miscarriage of
justice as conceded by Mr. Vedasto while rejoining to the submission by the
counsel for the respondent.
We need to emphasize here that it is not just enough to claim that the decision of
the Court is based on a manifest error on the face of the record resulting in the
miscarriage of justice; but it is the duty of the one who claims so to point to the
said error and submit on how it occasioned miscarriage of justice on his part.
The law is settled that any error complained of must be obvious and patent
mistake and not something which can be established by a long- drawn process
of reasoning or arguing on points which there may conceivably be two opinions
- See Tanganyika Land Agency (supra).
At page 106 of the record of this application the Court made the following
observation:
From the record and the submissions of the counsel for the
parties, there is no dispute that in his CMA Form no. 1, the
respondent complained that he was unfairly terminated and
sought, among other reliefs, an order reinstating him to his
employment.
The Court went on observing that:
There is no dispute that although in its decision, apart from
upholding the CMA s finding that the respondent’s
termination was procedurally unfair, the High Court found
also that the termination was substantially unfair because
the CMA erred in finding him guilty of the disciplinary
charges leveled against him. Despite that finding, the High
Court did not consider the respondents prayer for
reinstatement which was one of the reliefs sought in CMA
Form No. 1 under section 40 (1) of the ELRA. [Emphasis
added]
397
Having so observed, the Court was of the view that the omission to consider
whether or not to grant the relief sought by the respondent vitiated the impugned
decision because it left that crucial issue undetermined. The Court was guided
by the principle established in Truck Freight (T) Ltd v. CRDB Ltd, Civil
Application No. 157 of 2007 (unreported) where it was stated that when an issue
which is relevant in resolving the parties' dispute is not decided, an appellate
court cannot step into the shoes of the lower court and assume that duty but it
has to remit the case to that court for it to consider and determine the matter.
Therefore, the Court quashed that judgment and remitted the case to the High
Court for it to render a decision after having considered the reliefs sought by the
respondent.
As demonstrated above, we have perused carefully the decision of the Court,
however we could not trace any apparent error on the face of it warranting us to
exercise our power for review. Without taking much of our time, the second
ground of review is as well unfounded. The purported error claimed by the
applicant is that the respondent did not claim for reinstatement before the High
Court. The record of review is very clear at page 43 that in his chamber
summons, the respondent prayed for the High Court to grant the following
orders:
1. That the honourable court be pleased to revise part of the
award with reference No.
CMA/DSM/ILALA/R860/13/1081 before ALFRED
MASSAY dated 17th February 2017.
2. That consequently after the revision the honourable court
grants all claims as requested by the applicant.
3. Any other order fit to grant. [Emphasis added]
The High Court was dealing with the decision of the CMA as indicated above.
The respondent prayed for all the claims which he sought before the CMA. In
the circumstances, it cannot be said with certainty that the issue of reinstatement
was not among the reliefs to be considered by the High Court. At page 106 of
the record of application quoted above the Court observed that, the respondent
complained before the CMA that he was unfairly terminated and sought for an
order for reinstatement. It is also on record that the CMA found that the
respondent's termination was only unfair procedurally but, substantially fair. The
respondent was aggrieved by that finding and thus appealed to the High Court
claiming for all orders he sought before the CMA. We agree with the counsel for
398
the respondent that there is no apparent error in the decision of the Court by its
order of remitting the case to the High Court to consider reinstatement of the
respondent. The second ground is as well unfounded.
In the third ground, what actually the applicant is trying to do is nothing but to
direct the Court on how it ought to have decided. The applicant is claiming that
since the fairness or otherwise of the respondent's termination was yet to be
determined, the Court misdirected itself in remitting the case to the High Court
for it to decide on the relief of reinstatement. We have already indicated that the
High Court held that the termination of the respondent was unfair both
procedurally and substantially - See page 79 of the record of review. However,
it did not consider the relief prayed by the respondent in Form No. 1 before the
CMA. Now whether the Court was right or wrong to remit the case to the High
Court, which we say was not, in law that is not a fit ground for review - See
Chandrakant Joshubhai Patel v. Republic [2004] TLR - 218.
Let it be noted that, it is not upon the litigants and/or their counsel to direct the
court on what and how to decide the matters presented before it, but the court is
obliged to decide matters presented to it in accordance with the law on the
prevailing circumstances of each case. In the current Application the Court
having considered that the High Court did not resolve the respondent's issue of
reinstatement in its judgment, it quashed it and remitted the case to the High
Court for it to render a decision after having reconsidered the reliefs sought by
the respondent. By so doing the Court was guided by the settled principle of the
law in Truck Freight case (supra). We do not find any apparent error on the face
of the judgment of the Court in relation to the third ground of review.
Having observed as it appears above, the next question is whether or not we
should dismiss the application with costs. We think, since the applicant has tried
to argue and cite authorities, the application cannot be said with certainty, to be
frivolous as contended by the counsel for the respondent in which case we cannot
grant costs. For the reasons stated above, we find that this application is devoid
of merits. Consequently, we dismiss it with no order as to costs.
MASOLWA D. MASALU v. THE ATTORNEY GENERAL &

ANOTHER
399
AT DAR ES SALAAM
(WAMBALI, MWANDAMBO, and MASHAKA, JJ.A.)
(Appeal from the Ruling and Drawn Order of the High Court of Tanzania,
Labour Division at Dar es Salaam, Nyerere, J., dated 18th November, 2016 in
Labour Cause No. 325 of 2016)
Wrong citation - Appeal – whether an appeal which emanates from the ruling
and drawn order of the High Court striking out an application for wrong citation
of the applicable law was properly before the Court.
The appellant was an employee of the second respondent as Principal Supplies
Officer II. In the course of his employment the appellant was transferred from
the second respondent's office because of misconduct allegations levelled
against him. Following the allegations, the second respondent conducted
disciplinary proceedings against the appellant which in the end he was found
guilty of insubordination and giving false information. Consequent to the
findings of the disciplinary proceedings, he was terminated from employment.
Aggrieved by the outcome of the disciplinary proceedings, he appealed to the
Public Service Commission. The Commission annulled the decision of the
second respondent and ordered the immediate reinstatement of the appellant. The
second respondent was equally displeased by the decision of the Commission
and appealed to the President of the United Republic of Tanzania. The appeal
was allowed by the President, in which the decision of the second respondent
was confirmed and that of the Commission quashed. Aggrieved, the appellant
applied for prerogative orders from the High Court. The High Court struck out
the appellant's application, hence, this appeal.
Held: i) Where the ruling and order of the High Court do not finally determine
the rights of the parties as prescribed by law, the striking out of the application
for non-citation of the enabling provision of the law do not close the door to the
appellant to approach the same court for redress through a properly constituted
fresh application.
ii) Considering the nature of proceedings in the record of appeal, the ruling and
order of the High Court does not give the appellant an automatic right of appeal
to this Court either in terms of section 57 of the LIA or section 17 (5) of the Law
Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310.
400
ii) The appellant was bound to return to the High Court for a fresh application if
he wished as the previous application, whose ruling is a subject of this appeal,
was struck out and not dismissed. The instant appeal is not properly before the
Court because it is incompetent.
Appeal struck out

Cases referred to
(1) Citibank Tanzania v. Tanzania Telecommunication Company Limited and
Others, Civil Application No. 64 of 2003
(2) Joseph Mahona @ Joseph Mbije @ Maghembe Mboje and Another v. The
Republic, Criminal Appeal No. 215 of 2008

(1) Section 17 (5) of the Law Reform (Fatal Accidents and Miscellaneous
Provisions) Act, Cap. 310.
(2) Section 5 (1) (c) of the Appellate Jurisdiction Act, Cap 141of the AJA
Mr. Kobas, for Appellant

Mr. Hosea, Mses. Machagge and Mtullya, State Attorneys, for Respondent

WAMBALI, J.A.: The appellant, Masolwa D. Masalu was an employee of the

second respondent, the District Executive Director Mbozi District Council, as
Principal Supplies Officer II. It transpired that sometimes in the course of his
employment the appellant was transferred from the second respondent's office at
Mbozi to Tunduma Township Authority because of misconduct allegations
levelled against him. The allegations included soliciting bribe, having love affair
401
with a fellow employee and giving false information to different government
institutions against the second respondent.
Following the allegations, the second respondent conducted disciplinary
proceedings against the appellant which in the end he was found guilty of
insubordination and giving false information. Consequent to the findings of the
disciplinary proceedings, he was terminated from employment by the second
respondent on 17th November, 2009.
It is in the record that the appellant was aggrieved by the outcome of the
disciplinary proceedings. The thrust of the appellant's displeasure was based on
the contention that he was condemned unheard because the disciplinary
proceedings were conducted in his absence as he was not summoned to appear
at the hearing to defend the allegations. He thus appealed to the Public Service
Commission (the Commission). As it were, in its determination, the Commission
annulled the decision of the second respondent and ordered the immediate
reinstatement of the appellant.
The second respondent was equally displeased by the decision of the
Commission and thus she appealed to the President of the United Republic of
Tanzania in accordance with the requirement of the law. The said appeal was
allowed by the President, in which the decision of the second respondent was
confirmed and that of the Commission quashed.
It is noteworthy that according to the record of appeal, though the decision of the
President was delivered on 6th December, 2015 and the appellant seemed to have
been aggrieved, he did not seek the prescribed legal remedy within the period
provided by law. In this regard, on 18th August, 2016 through Miscellaneous
Labour Cause No. 325 of 2016 he filed an application seeking three orders: first,
extension of time within which to file an application for leave to apply for
prerogative orders of certiorari and mandamus; second, leave to apply for
certiorari to quash the decision which confirmed the appellant's termination
from employment; and third, leave to apply for mandamus to compel the second
respondent to reinstate the appellant as ordered by the Commission.
The appellant's application, however, encountered a notice of preliminary
objection that was lodged by the respondents comprising three points of law. It
is on record that during the hearing of the preliminary points of objection the
respondents' counsel added another point of law to the effect that the appellant's
application was incompetent for citing non existing law in the legal system. The
402
respective point was considered by the High Court judge and in the end it was
sustained leading to the striking out of the application. Consequently, the High
Court did not deem it appropriate to consider the respondents' other points in the
notice of preliminary objection.
The decision of the High Court striking out the appellant's application aggrieved
him. In the circumstances, he has approached the Court advancing two grounds
of appeal premised on the following complaints:
1. The trial judge erred in law in holding that the application
is incompetent in court for being brought under a non-
existing law while there was other correctly and properly
cited enabling provisions of the law to sustain the
application.
2. The trial judge erred in law in holding that the applicant
omitted to cite rule 56 of the Labour Court Rules, 2007,
GN No. 106 of 2007 which is the only provision
empowering the court to abridge or extend time, without
hearing the appellant while there was a properly cited
provision of the Law of Limitation Act.
When the appeal was called on for hearing before us, the appellant was
represented by Mr. Odhiambo Kobas, learned counsel, while the respondent
enjoyed the services of Mr. Benson Hosea, Ms. Lillian Machagge and Ms.
Rehema Mtullya, all learned State Attorneys. It is noted that counsel for the
parties prayed to adopt their respective written submissions for consideration of
the Court in determining the appeal.
However, on our part, having scrutinized the nature of the order of the High
Court in which the application was struck out for being incompetent, we
requested counsel, in addition to the submissions for and against the grounds of
appeal, to also address us on whether the instant appeal is properly before the
Court.
At this juncture, we think the issue for determination is whether the instant
appeal which emanates from the ruling and drawn order of the High Court
striking out the application is properly before the Court.
It is noteworthy that the drawn order included in the record of appeal simply
indicates that "the application is struck out". However, our close scrutiny of the
403
relevant part of the reasoning in the ruling of the High Court which led to the
decision of striking out of the application is couched in the following terms:
Therefore, the fact that applicant counsel in his application

cited sections 51 and 52 of the Labour Relations Act No.
7/2004 which is non-existence law in our legal system
purporting to be Labour Institutions Act, No. 7/2004 renders
the application incompetent before the Court. And further to
that this Court noted suo mottu applicant omitted to cite Rule
56 of the Labour Court Rules G.N. 106/2007 which is the only
provision which empowers this Court to abridge or extent
time. The Law of Limitation cited by applicant is inapplicable
law. Labour Court has its own procedural law which a party
seeking redress must comply with.
After that reasoning the learned High Court judge then made reference to and
reproduced part of the decision of the Court in Citibank Tanzania v. Tanzania
Telecommunication Company Limited and Others, Civil Application No. 64 of
2003 (unreported) in respect of the consequences of non - citation of the proper
provision of the law and proceeded to state as follows:
Guided by the above focused finding of the Court of Appeal,
this Court is left with no option than to find this
application incompetent for non- citation of the enabling
provision of the law. Also this court finds no need to focus
on the other grounds of the preliminary objection as the raised
ground during hearing suffices to dispose of the application.
In the end result this application is hereby struck out for the
defects elaborated above. [Emphasis Added]
It is clear to us that from the reproduced part of the ruling of the High Court, the
main reason for striking out the appellant's application for extension of time
within which to lodge an application for leave to apply for prerogative orders
and other associated prayers was based on the conclusion that there was non-
citation of the enabling provisions of the law.
We are however alive to the argument of Mr. Kobas that the appellant has a right
of appeal because; firstly, the issue of non-citation of Rule 56 of the labour Court
Rules, 2007 was raised suo motu by the High Court in the course of composing
404
the ruling without giving the appellant the right to be heard and, secondly, that
the right of appeal exists in terms of section 57 of the LIA. Nevertheless, we
think the counsel's arguments are misplaced because at this point our focus is not
on the complaint in the second ground of appeal, but on the major reason for
striking out the appellant’s application. This is so because: firstly, according to
the part of the ruling of the High Court which we have reproduced above, the
thrust of the High Court's order striking out the application was due to non-
citation of the enabling provisions of the law.
Secondly, section 57 of the LIA provides for an outright right of appeal on points
of law only in cases where the High Court, Labour Division exercising original
jurisdiction has finally determined the rights of the parties by either granting the
reliefs sought or dismissing the claims. For clarity, section 57 provides as
follows:
57. Any party to the proceedings at the Labour Court may
appeal against the decision of that Court to the Court of Appeal
of Tanzania on a point of law only.
Our examination of the record of appeal reveals that the appellant's application
which was placed before the High Court had three prayers, namely: extension of
time to file an application for leave to apply for prerogative orders of certiorari
and mandamus; leave to apply for certiorari to quash the President's decision
dated 6th December, 2016; and leave to apply for orders of mandamus to compel
the second respondent to reinstate the appellant. Basically, apart from the
respective application being premised under the provisions of the Law of
Limitation Act, the Labour Institutions Act No. / of 2004 (Cap. 300), the
Employment and Labour Relations Act, No. 6 of 2004 (Cap. 366) and the Labour
Court Rules, GN No. 106 of 2007; all the prayers were intended to ask the High
Court to deal with the reliefs and orders grantable under Cap. 310. Basically, the
right of appeal to an aggrieved party emanating from the powers of the High
Court under Cap. 310 is provided under section 17 (5). However, the High Court
did not exercise any power under the provisions of Cap. 310 as it simply struck
out the appellant's application for being incompetent.
In the circumstances, we agree with Mr. Hosea that the appellant was not entitled
to appeal as of right under section 57 (1) of LIA on a point of law as argued by
Mr. Kobas. In any case, given the nature of the order of the High Court which in
essence struck out the appellant's application for non-citation of the enabling
provision of the law, there is no automatic right of appeal. Indeed, in view of the
405
appellant's complaint in the second ground of appeal, since the High Court did
not determine the application on merits, there is no doubt that the impugned
order falls under the categories of any other orders which are not appealable as
of right. Therefore, in accordance with the law, the appellant would have legally
appealed to the Court after obtaining the leave of the High Court or this Court as
prescribed under section 5 (1) (c) of the AJA. This is strengthened by the fact
that in terms of section 52 of the LIA in performing its functions the Labour
Division has the powers of the High Court.
Most importantly, in the circumstances of this appeal, since the ruling and order
of the High Court did not finally determine the rights of the parties as prescribed
by law, the striking out of the application for non-citation of the enabling
provision of the law did not close the door to the appellant to approach the same
court for redress through a properly constituted fresh application. In short,
considering the nature of proceedings in the record of appeal, the ruling and
order of the High Court does not give the appellant an automatic right of appeal
to this Court either in terms of section 57 of the LIA or section 17 (5) of Cap.
310.
In this regard, we are settled that the appellant was bound to return to the High
Court for a fresh application if he wished as the previous application, whose
ruling is a subject of this appeal, was struck out and not dismissed.
At this juncture, we wish to reiterate what the Court stated in Joseph Mahona @
Joseph Mbije @ Maghembe Mboje and Another v. The Republic, Criminal
Appeal No. 215 of 2008 (unreported) that:
In the instant case, the matter before the High Court was not
dismissed but struck out. That implies according to Ngoni
Matengo co-operative Marketing Union Ltd v. Ali Mohamed
Osman [1959] 1. EA. 577 the matter was incompetent which
means there was no proper application capable of being
disposed of. The established practice is that the applicant
in an application which has been struck out is at liberty to
file another competent application before the same court
before opting to appeal as it has appeared in this appeal.
[Emphasis Added]
To this end, we think that the above observation equally applies in the instant
appeal. In the event, we agree with the submission of the respondents' counsel
406
that the instant appeal is not properly before the Court because it is incompetent.
In the result, though we heard oral and written submissions of the counsel for
the parties for and against the appeal, we do not deem it appropriate to deliberate
and determine the two grounds of appeal.
Consequently, we strike out the appeal. However, having regard to the nature of
the appeal before us, we make no order as to costs.
Appeal struck out
MIC TANZANIA LIMITED v. IMELDA GERALD

AT DAR ES SALAAM
(MKUYE, LEVIRA, and MAIGE, JJ.A.)
(Appeal from the judgment and decree of the High Court of Tanzania, Labour
Revision at Dar es Salaam, Aboud, J., dated 22nd February, 2019 in Labour
Revision – jurisdiction of the Labour Court – appeal arises from a decision on
revision against the decision of the arbitral tribunal refusing to set aside a
dismissal order - whether the Labour Court has jurisdiction to reverse
proceedings of the arbitral tribunal.
Application for restoration of arbitral proceedings – Whether the Labour Court
or non-existence of sufficient cause.
Interpretation – whether the use of the word “dispute’’ in Rule 50 of the Rules
that “an appeal does not lie against a decision of the Labour Court unless it has
the effect of finally determining the dispute’’ refers to a dispute in the CMA or
the Labour Court.
The respondent was employed by the appellant in different capacities. The

respondent was dismissed from her service for the reason of misconduct.
Dissatisfied with the termination, the respondent instituted a complaint at the
Commission for Mediation and Arbitration. The CMA dismissed the complaint
407
for non-appearance of the respondent. Aggrieved, the respondent filed an
application for setting aside the dismissal order. The application was dismissed
for insufficient reasons. The respondent instituted an application for revision at
the High Court, Labour Division. Upon hearing, the Labour Court held that,
there was sufficient cause to justify restoration of the arbitral proceedings. It thus
reversed the decision of the arbitral tribunal refusing to set aside the dismissal
order and ordered for restoration of the same. The appellant is displeased with
the decision of the Labour Court and hence the instant appeal
Held: i) As a general rule, an appellate court or revisional court would not
interfere with the discretion of the lower court, where the discretion is exercised
in violation of the principle above mentioned, the appellate court may, where the
result thereof leads to miscarriage of justice, interfere.
ii) The appeal being against a decision of the Labour Court, it is only limited to
the extent of points of law and not more.
iii) The Labour Court when exercising its revisional jurisdiction, may revise any
proceedings of the arbitral tribunal where among others, it may act on material
irregularity or material errors involving injustice.
iv) In determining whether the error involved injustice within the meaning of
rule 28 (1) (d) of the Rules, the test should not be that the error or omission
actually caused injustice, it suffices if the same had a reasonable possibility of
causing injustice.
v) The application was granted on account of material errors and irregularities
which is a good cause for reversing a decision of the arbitral tribunal according
to rule 28 (1) (c) and (d) of the Rules.
vi) Much as it is the law under rule 50 of the Rules that, an appeal does not lie
against a decision of the Labour Court unless it has the effect of finally
determining the dispute; the phrase "dispute" used in the respective provision
refers to the dispute in the proceedings at the Labour Court and not at the arbitral
tribunal.
Appeal dismissed
Cases referred to
(1) Swabaha Mohamed Shosi v. Saburina Mohamed Shosi, Civil Appeal No.
98 of 2018;
(2) Tusekile Dancan v. Republic, Criminal Appeal No. 202 of 2009;
408
(3) Felix Turnbo Kisima v. TTCL Limited and Another, Civil Application No.
1 of 1997.

(1) Rule 50 of the Labour Courts Rules (G.N. 106 OF 2007];
(2) section 57 (1) of the Labour Institutions Act [Act No. 7 of 2004];
(3) Section 91 (1) and (2) of the Employment and Labour Relations Act [Act
No. 6 of 2004]; and
(4) Rule 28(1) of the Labour Courts Rules (G.N. 106 OF 2007].
Mr. Mbwambo, for Appellant

Mr. Mbedule, for Respondent

Dared 23rd March, 2022
MAIGE, J.A.: From 12th August 2004 to 3rd day of January, 2012, the
respondent had been in the service of the appellant in different capacities. It is
not in dispute that, until on the date just referred (henceforward, "the termination
date"), the respondent was holding the position of media and advertisement
manager. As the record speaks, on the termination date, the respondent was
dismissed from her service for the reason of misconduct.
Unhappy with the termination, the respondent commenced, on 31st January 2012,
a complaint at the Commission for Mediation and Arbitration ("the arbitral
tribunal”). She was challenging the termination of her service for being unfair
both substantially and procedurally. After several adjournments subsequent to
the closure of the appellant's case, on 11th day of July, 2016, the arbitral tribunal
dismissed the complaint for non-appearance of the respondent. Aggrieved, the
respondent filed an application for setting aside the dismissal order for the reason
that she was prevented from appearing at the arbitral tribunal by sickness and
her counsel for the reason of appearance in the High Court. The arbitral tribunal
dismissed the application for want of sufficient reasons to justify the non-
appearance.
Once again aggrieved, the respondent initiated an application for revision at the
High Court, Labour Division ("the Labour Court"). Upon hearing, the Labour
Court held that, there was sufficient cause to justify restoration of the arbitral
409
proceedings. It thus reversed the decision of the arbitral tribunal refusing to set
aside the dismissal order and ordered for restoration of the same.
The appellant is displeased with the decision of the Labour Court and hence the
instant appeal wherein she is faulting the said decision on the following grounds:
1. That the learned High Court Judge erred at law by setting

aside the Commission for Mediation and Arbitration's
dismissal order without evidence for non-appearance by the
Respondent.
2. That the learned High Court Judge erred at law by treating
irregularities of Commission for Mediation and Arbitration's
records as reasons for setting aside the dismissal order.
In the conduct of this appeal, Messrs. Rahim Mbwambo and Soften Mbedule,
both learned advocates, represented the appellant and the respondent,
respectively. In their brief oral arguments for and against the appeal, each of the
counsel fully adopted his written submissions earlier on filed with some
highlights and additions. We commend the counsel for their well-researched
submissions which have added value to this judgment.
Having appropriately considered the rival submissions and examined the record,
it is desirable that we determine the substance of the appeal. We understand that
the appeal at hand arises from a decision on revision against the decision of the
arbitral tribunal refusing to set aside a dismissal order. Much as we subscribe to
Mr. Mbwambo that, a trial court or tribunal enjoys a wide discretion to grant or
not an application for setting aside a dismissal order, such discretion has as of
law to be exercised reasonably, judiciously and on sound legal principles.
Therefore, although as a general rule, an appellate court or revisional court
would not interfere with the discretion of the lower court, where the discretion
is exercised in violation of the principle above mentioned, the appellate court
may, where the result thereof leads to miscarriage of justice., interfere. See for
instance, Swabaha Mohamed Shosi v. Saburina Mohamed Shosi, Civil Appeal
No. 98 of 2018 and Tusekile Dancan v. Republic, Criminal Appeal No. 202 of
2009 (both unreported).
410
It has further to be observed that, the appeal at hand being against a decision of
the Labour Court, it is only limited to the extent of points of law and not more.
This is according to section 57 (1) of the Labour Institutions Act [Act No. 7 of
2004] (“the LIA”).
In the second ground, the Labour Court is faulted for treating the irregularities
in the records of the arbitral tribunal as reasons for setting aside the dismissal
order. We see no merit on this complaint.
We shall assign our reasons gradually as we go on. The powers of the Labour
Court on revision are set out in section 91 (1) and (2) of the Employment and
Labour Relations Act [Act No. 6 of 2004] ('the ELRA") as elaborated in rule
28(1) of the Labour Courts Rules (G.N. 106 OF 2007] (“the Rules”). The latter
28-(1) The Court may on its own motion or on application by
any party or interested person, call for the record of any
proceedings which have been decided by any responsible
person or body implementing the provisions of the Acts and
which no appeal lies or has been taken thereto, and if such
responsible person or body appears-
(a) to have exercised jurisdiction not vested in it by law; or
(b) to have failed to exercise its jurisdiction so vested; or
(c) to have acted in exercise its jurisdiction illegally or with
material irregularity; or
(d) that there has been an error material to the merits of the
subject matter before such responsible person or body
involving injustice,
(e) the Court may revise the proceedings and make such order
as it deems fit.
What is apparent from the above provisions is that, the Labour Court when
exercising its revisional jurisdiction, may revise any proceedings of the arbitral
tribunal where among others, it acted on material irregularity or there has been
material errors involving injustice. In this case, the Labour Court having
examined the record, it established of there being material irregularities and
errors which might have created confusion to the counsel for the respondent on
the dates set for hearing. On her own words, the Labour Court Judge observed
at pages 298 and 299 of the record as follows:
411
I have also noted some material irregularities necessitating
revision of the CMA decision. First, the record does not
contain all the proceedings as reflected above and in the
submissions by the parties. For instance, it is on record that
ruling to restore the first dismissal order was to be ready in
writing by 6/6/2016 according to the Arbitrator's order of
unknown date as is reflected in page 12 of the CMA
proceedings. That being the case it is vivid clear that the
applicant's application for restoration was filed without the
order of the CMA which was ready by 6/6/2016. And there is
no record of 18/1/2016 the day the Arbitrator BATENGA
overturned her dismissal order of 18/1/2016, which was made
under inapplicable provision of the law that is Rule 28(1) (b)
of the G.N. 67 of 2007. Also there is no record of the ruling of
27/05/2016 when the Arbitrator said it was delivered and
parties were notified about the Arbitration hearing to proceed
on 11/07/2016. Another anomaly is that there is a lot of
uncertain dates which reflect the matter was going front and
backwards and before different arbitrators. This could have
contributed to the complainant advocate to focus on the dates
set for the High Court cases as he advanced, and the applicant
had no control or influence of the advocate as was decided in
Felix Tumbo Kisima (supra).
Mr. Mbwambo in the first place submitted that, the Labour Court was not
justified to revise the decision of the arbitral tribunal on the ground of
irregularities. We do not agree with him because under the express provision of
rule 28 (1) (c) and (d) of the Rules, the Labour Court is empowered to revise any
proceedings of the arbitral tribunal for the reason of material irregularity or
material errors involving injustice.
In the second place, it was Mr. Mbwambo's submission that, the irregularities in
question did not exist. Again, we cannot agree with him. We have prudently gone
through the proceedings of the arbitral tribunal appearing at pages 322 to 394 of
the record and we are satisfied that, all the irregularities and errors pointed out
in the judgment of the Labour Court as above quoted are apparent on the record.
Mr. Mbwambo submitted further or in the alternative that, the said irregularities
if at all existed, neither touched the root of the complaint nor caused any
412
injustice. With all respects to the counsel, we are unable to buy his view. The
missing records and orders reflected in the judgment being in relation to the
dismissal order in question and the application to set it aside, were very material
in determining the correctness or otherwise of the order refusing to set aside the
dismissal order. Besides, the confusions and uncertainties on the dates when the
parties were to appear before the arbitral tribunal were serious errors which, as
rightly observed by the Labour Court, was likely to cause confusions on the part
of the counsel for the respondent on the time table of the arbitral tribunal.
The above finding in our view was sufficient to establish that the error in
question involved injustice. We say so because in determining whether the error
involved injustice within the meaning of rule 28 (1) (d) of the Rules, the test
should not be that the error or omission actually caused injustice, it suffices in
our judgment, if the same had a reasonable possibility of causing injustice. The
Labour Court Judge can, therefore, not be faulted for mere reason that there was
no proof of actual failure of justice as intimated in the submissions for the
appellant. In the circumstance, the second ground of appeal is without merit and
it is dismissed.
We shall now turn to the first ground as to justification of non- appearance by
the respondent.
The complaint by Mr. Mbwambo in his submissions is two-fold. First, there was
no sufficient evidence on the record that, the non-appearance of the counsel for
the respondent on the date of dismissal was caused by his appearance in the High
Court. In here, the issue involved pertains to the correctness of the assessment
of evidence in the affidavit and counter affidavit by the Labour Court. This is a
pure point of fact which in accordance with section 57 of the LIA is not within
the scope of an appeal envisaged therein. For that reason, we shall not accept it.
On the second place, it is the contention for the appellant that the Labour Court
or non-existence of sufficient cause. We do not buy that view. As we noted
above, besides existence of sufficient cause, the application was granted on
account of material errors and irregularities which is a good cause for reversing
a decision of the arbitral tribunal according to rule 28 (1) (c) and (d) of the Rules.
That would by itself suffice to depose of the appeal.
That aside, contrary to the expression of the counsel for the appellant, it is not
true that, the Labour Court did not consider existence or non-existence of
413
sufficient cause. It clearly stated at page 297 of the record that, sufficient cause
was the overriding consideration in such an application. In its decision however
the Labour Court applied the wide concept of the term sufficient cause as set out
in the case of Felix Turnbo Kisima v. TTCL Limited and Another, Civil
Application No. 1 of 1997 (unreported), which we fully subscribe to, where the
Court stated that:
It should be observed that the term ''sufficient cause" should
not be interpreted narrowly but should be given a wide
interpretation to encompass all reasons or causes which are
outside the applicant's power to control or influence resulting
in delay in taking any necessary step.
With above authority in mind, and having considered the facts of the case in
totality in line with the decision of the arbitral tribunal, the Labour Court held
that there was sufficient cause for restoration of the complaint. Its decision was
based on three reasons. First, the dismissal was caused by non-appearance of
the respondent for just a day while the proceedings had remained unresolved for
almost five years for the reasons not associated with the respondent. Two, the
complaint was dismissed just on the first day of hearing after restoration of the
proceedings. Three, the dismissal was made while the appellant's case had been
closed and the respondent's case was about to commence. In conclusion
therefore, the Labour Court took the view that, restoration of the proceedings
was in line with the policy objective of the labour laws which is substantive
justice. In her own words, the Labour Court Judge observed as follows:
In my view the decision to set aside the dismissal order would
not bring inconvenience to the respondent rather will enhance
the spirit of our labour laws as was decided by the court in
Hamid Mfaume Ibrahim case (supra). In the spirit of labour
laws our focus should always be in social justice. I fully agree
with Hon. Arbitrator that our labour laws discourages
unnecessary delays of labour matter to allow parties to engage
fully in productive economic activities for the growth of the
national economy, however I am of the view that it should not
be done to the detriment of substantive right of either party
depending on the circumstances of each case. In this case the
matter had reached a stage of arbitration hearing of the
complaint. According to the record she is not the person who
414
caused delay of arbitration which took almost five years laying
on CMA shelves. So it was wrong for the Arbitrator to say the
delay of only one day on 11/7/2016 caused injustice.
At this juncture, we find it necessary to observe that, in the affidavit in support
of the application for setting aside the dismissal order, Mr. Seni Malimi, the
advocate who was in the conduct of the matter for the respondent at the arbitral
tribunal, deposed that he did not appear because he was attending some matters
in the High Court while his client was prevented from appearing by reason of
sickness.
Admittedly, unlike at the Labourt Court where the proceedings of the High Court
and medical report were attached in the affidavits to establish the grounds for the
non-appearance of the advocate and the respondent, respectively, at the arbitral
tribunal, the factual claims in the affidavit were not founded on any document.
Conversely, there is nothing in the decision of the arbitral tribunal to the effect
that, the evidence in the affidavit was not believed because of absence of such
documents. Instead, the arbitral tribunal spent much time blaming the respondent
to be the cause of the delay, the blame, which as revealed above, was correctly
rejected by the Labour Court. For clarity, we shall reproduce hereunder the
whole part of the ruling constituting the determination of the application. Thus:
In balance therefore; the commission is on the opinion that;
the intention of the employment and labor laws is to do away
with unnecessary delays of labor cases, because doing so
would impose additional cost of the parties to refer the matter
and create nonproductive business which ultimately will
always harm the applicant, respondent the economy of the
society as whole.
Indeed, aim of the view that, the applicant has failed to provide
before the commission on the grounds that he raised above,
also the matter or the dispute was leady dismissed but the
commission due to frequently nonappearance of the
Applicant, and it should be noted so that the entire concept of
justice to be seen and done. Therefore, the application is
dismissed accordingly. [sic]
That being the decision of the arbitral tribunal, it is surprising why the Labour
Court is faulted in not properly directing its mind on the issue of sufficient cause
for non-appearance. In our view, the Labour Court rightly interfered with the
415
discretion of the arbitral tribunal for failure of the same to properly exercise its
jurisdiction by making a judicial inquiry into the matter before it. We think, for
the arbitral tribunal to reject the evidence in the affidavit, it was bound to assign
reasons therefor. For, it is trite law that, every witness is entitled to credence and
whoever questions the credibility of a witness must bring cogent reasons beyond
mere allegations. (See for instance, Goodluck Kyando v. Republic, Criminal
Before we conclude our judgment, we find ourselves unable to do without
remarking though briefly on the two legal issues raised by the counsel for the
respondent in the course of submissions.
The first point is on the appealability of the judgment in question. It was
submitted that the same was not appealable because it does not have the effect
of finally determining the dispute as per rule 50 of the Rules. For the appellant,
it was submitted to the contrary. We have considered the rival submissions on
this issue. Much as it is the law under rule 50 of the Rules that, an appeal does
not lie against a decision of the Labour Court unless it has the effect of finally
determining the dispute; we are of the view that, the phrase "dispute" used in the
respective provision refers to the dispute in the proceedings at the Labour Court
and not at the arbitral tribunal. The dispute at the Labour Court was on the
correctness of the decision of the arbitral tribunal refusing to set aside the
dismissal order. In its judgment, the Labour Court disposed of the dispute finally
when it held the said decision incorrect and set the same aside. The appellant, in
as long as she was aggrieved by such a final decision, had a right to appeal
contrary to the complaint by the respondent and her counsel.
Another point raised are on the defects in the proceedings constituting the
evidence of the appellant's witnesses. They are criticized for being taken without
oaths as mandatorily required by rule 19(2) (a) and 25 (1) of the Labour
Institutions (Mediation and Arbitration Guidelines), G.N. 67 of 2007 (''the GN
No. 67 of 2007") and for want of signature of the presiding arbitrator. Relying
on the authority in the case of the Copycat Tanzania Limited v. Mariam Chamba,
Civil Appeal No. 404 of 2020 (unreported), we were invited to nullify the
respective proceedings and order that, the hearing starts afresh. In rebuttal, Mr.
Mbwambo submitted that, the issue is premature as the decision of the arbitral
tribunal was not based on evidence but default of the respondent to appear. With
respect, we agree with him. As we indicated herein above, what was in dispute
at the Labour Court was the decision dismissing the complaint for want of
416
appearance. Such a decision could have been made even if no witness from the
appellant had testified.
In any event, the trial at the arbitral tribunal was still in progress when the
dismissal order was issued. It would follow therefore that, if the proceedings are
restored, the arbitral tribunal will still be seized with powers to eliminate the
defects. It is on that account that we shall dismiss this complaint.
In the upshot and for the reasons as afore stated, we find the appeal without merit.
It is accordingly dismissed with costs.
Appeal dismissed
MIC TANZANIA LTD v. ALBERT P. MILANZI

AT MTWARA
(NDIKA, KEREFU, and KENTE, JJ.A.)
(Appeal from the Ruling and Order of the High Court of Tanzania Labour
Division at Mtwara, Twaib, J., dated 2nd October, 2018 in Labour Revision No.
13 of 2017)
Court practice – administration of oath or affirmation to witness – consequences
for failure to administer the same.
Interpretation – the term court – whether CMA falls within the meaning of the
court.
Evidence - omission by the arbitrator to append his signature to the evidence of
the witnesses – whether fatal to the proceedings.
The respondent was an employee of the appellant. The respondent instituted a

complaint at CMA on the ground that, he was unfairly terminated. Dissatisfied
with the decision of the CMA, the appellant applied for revision at the High
Court. The application was dismissed on the ground that the contract of
417
employment of the respondent was procedurally but unfairly terminated, hence,
this appeal.
Held: i) Rule 25 (1) of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, 2007 requires the parties to a labour dispute in an attempt to
prove their respective cases, to lead evidence through the witnesses who must
testify under oath throughout the common three stages of examination of
witnesses namely, examination in-chief, cross -examination and re-examination.
Before any witness can give evidence before the CMA, he must take oath. The
law requires a person who is competent and compellable to testify on oath, the
omission to do so, vitiates the proceeding as it prejudices the parties.
ii) The term "court" is defined under section 2 of the Act to include, every person
or body of persons having by law or consent of the parties’ authority to receive
evidence upon oath or affirmation but does not include a court martial
established under the National Defence Act. (Act No. 24 of 1966). The CMA
falls within the scope of the above cited provision of the law.
iii) The omission by the arbitrator of the CMA to administer oath to the witnesses
before they go on to testify and to append signature to each witness's evidence,
has the cumulative effect of vitiating the entire proceedings before the CMA.
Appeal allowed
Cases referred to
(1) Hamisi Chuma@ Hando Mhoja and Another v. Republic, Criminal
(2) Catholic University of Health and allied Sciences (CUHAS) v. Epiphania
Mkunde Athanase, Civil Appeal No. 257 of 2020;
(3) Mhajiri Uladi and Another v. Republic, Criminal Appeal No. 234 of 2020;
and
(4) Chacha S/o Ghati Magige v. Republic, Criminal Appeal No. 406 of 2017
(1) Rule 25 (1) of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, 2007;
(2) Rule 113 (1) of the Tanzania Court of Appeal Rules, 2009;
(3) Section 210 (1) (a) of the Criminal Procedure Act, [Cap 20 R.E 2019]; and
(4) Order XVIII rule 5 of the Civil Procedure Code [Cap 33 R.E 2019]
418
Mr. Emmanuel, for Appeellant

Dated 22nd March, 2022
KENTE, J.A.: The appellant's application for revision of an award dated 18th
August, 2017 issued by the Commission for Mediation and Arbitration of
Mtwara (henceforth the CMA), was dismissed by the High Court (Twaib, J.),
sitting at Mtwara on the ground that the contract of employment of one Albet
Milanzi (hereinafter the respondent), was procedurally but unfairly terminated.
This appeal is against that decision.
Mr. Rahim Mbwambo, learned advocate whose Law Firm represented the
appellant company Mic Tanzania Limited, had lodged a memorandum of appeal
containing three grounds, thus:
1. That, the learned High Court Judge erred at law in not
finding that the respondent was not an employee of the
applicant (sic), as such not entitled to any of the
compensation granted by the Trial Arbitrator.
2. That, the learned High Court Judge erred at law in not
deciding the issues raised and argued before him to wit
whether the respondent was earning a monthly salary of
TZS.770,000/=, whether the respondent was entitled to
TZS.770, 000/- remuneration in lieu of termination notice
and whether the respondent was entitled to remuneration
equal to TZS.770,000/= as annual leave; and.
3. That, the learned High Court Judge erred at law in
upholding the trial Arbitrator's finding that the respondent
was entitled to TZS.4,620,.000/= as subsistence allowance
without legal justification.
The background giving rise to the present appeal may be summarized as follows:
On 14th January, 2015, the appellant company and the respondent entered into
an agreement under which the respondent was appointed as area supervisor for
purposes of supervising the selling of the appellant's products and services.
Apparently, sometimes in 2017, the said agreement came to an end thereby
419
triggering the dispute between the appellant company and the respondent
·Whereas, the respondent successfully alleged before the CMA and the High
Court that, he was employed by the appellant company and that his employment
contract was unfairly terminated, the appellant company stood steadfast on their
position maintaining that, the respondent was an independent contractor and
that the contractual relationship between him and the appellant came to an end
on 13th January, 2017 when neither party requested for its renewal.
In this appeal, the appellant company was represented by Mr. Ndanu Emmanuel,
learned counsel while the respondent appeared in person to resist the appeal,
without any legal representation.
At the outset, pursuant to Rule 113 (1) of the Tanzania Court of Appeal Rules,
2009 as amended (the Rules), Mr. Ndanu sought and obtained leave of the Court
to argue an additional ground of appeal which he said was very crucial. There
being no objection from the respondent, we granted the prayer by the learned
counsel for the appellant. To be viewed in a proper perspective, we framed the
additional ground of appeal preferred by Mr. Ndanu, thus:
The evidence before the CMA was recorded irregularly
contrary to the governing provisions of the law.
We have considered the submissions made by Mr. Ndanu together with the
authority he cited to us. The fact that during the trial the witnesses were not made
to take oath or to affirm before they went on to give evidence and that the
arbitrator did not append his signature at the end of the testimony of each
witness, does not attract any controversy; It is plain for all and sundry to see.
Therefore, the next issue is on the correctness, legality and regularity or
otherwise of the proceedings in the CMA which, together with the award, were
affirmed by the High Court. As already observed, Mr. Ndanu while pointing out
the glaring omission by the CMA, he insisted that the same was so grave as to
render the entire proceedings and award by CMA legally a nullity. Without
hesitation, we accept Mr. Ndanu's unfaltering submission.
We have taken great pains to wade through the record of appeal together with
the original record of the CMA. Our findings are consistent with those of Mr.
Ndanu. That is to say, the evidence of the appellant's witnesses and that of the
respondent was not given under oath contrary to rule 25 (1) of G.N No. 67 of
2007. For the avoidance of doubt, the above cited rule requires the parties to a
labour dispute such as the instant one, in an attempt to prove their respective
420
cases, to lead evidence through the witnesses who must testify under oath
throughout the common three stages of examination of witnesses namely,
examination in-chief, cross -examination and re-examination. It follows
therefore in our judgment that, before any witness can give evidence before the
CMA, he must take oath. In this view, we are reinforced by the provisions of
section 4(a) of the Oaths and Statutory Declarations Act [Cap 34 R.E. 2019]
(henceforth the Act) which provides that:
4. Subject to any provision to the contrary contained in any
written law/ an oath shall be made by -
(a) any person who may lawfully be examined upon oath or
give or be required to give evidence upon oath by or before
a court.
The term "court" is defined under section 2 of the said Act to include, every
person or body of persons having by law or consent of the parties authority to
receive evidence upon oath or affirmation but does not include a court martial
established under the National Defence Act. (Act No. 24 of 1966). Obviously,
the CMA falls within the scope of the above cited provision of the law.
In the light of what we have said so far and in view of the mandatory
requirements of the law, we are firmly of the opinion that, where, as it happened
in the case in hands, the law requires a person who is competent and compellable
to testify on oath, the omission to do so, vitiates the proceeding as it prejudices
the parties. All we can do at this stage is to also observe that, one has to bear in
mind that, by saying so, we can neither profess being innovative in Jurisprudence
nor be accused of disturbing the well-established principle of law. That is exactly
what we said when we were faced with a similar situation in the cases of Hamisi
Chuma@ Hando Mhoja and Another v. Republic, Criminal Appeal No. 371 of
2015 and Catholic University of Health and allied Sciences (CUHAS) v.
Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020 (both unreported).
We also followed the same principle in the case of Joseph Elisha (supra) to
which we were ably referred by Mr. Ndanu.
With regard to the omission by the arbitrator to append his signature to the
evidence of the witnesses, once again, we are not blazing a trail through an
uncharted territory. Taking inspiration from section 210 (1) (a) of the Criminal
Procedure Act, [Cap 20 R.E 2019], and Order XVIII rule 5 of the Civil Procedure
Code [Cap 33 R.E 2019] we held in Joseph Elisha (supra) that, the effect of
failure by the presiding judicial officer to append signature to the evidence of a
421
witness jeopardizes the authenticity of such evidence and it is fatal to the
proceedings. (See also Mhajiri Uladi and Another v. Republic, Criminal Appeal
No. 234 of 2020 and Chacha S/o Ghati Magige v. Republic, Criminal Appeal
No. 406 of 2017 (both unreported).
In the upshot, and for the foregoing reasons, we are inclined to agree with Mr.
Ndanu that, indeed the omission by the arbitrator of the CMA to administer oath
to the witnesses before they went on to testify and to append signature to each
witness's evidence, had the cumulative effect of vitiating the entire proceedings
before the CMA.
Without recourse to the remaining grounds, we allow the appeal, quash the
proceedings of the CMA and set aside the resultant award. Likewise, we do the
same to the proceedings and judgment of the High Court which affirmed the
decision of the CMA. In the interest of justice, we remit the matter to the CMA
for the parties to be heard de novo before another arbitrator, with all possible
expedition. This being a labour dispute, we make no order as to costs.
Appeal allowed
MUHIMBILI NATIONAL HOSPITAL v. LINUS LEONCE

AT DAR ES SALAAM
(Appeal from the judgment and decree of the High Court of Tanzania (Labour
Division) at Dar Es Salaam, Mashaka. J., dated 3rd March, 2017 in Revision
No. 120 of 2016)
Termination of employment – termination by agreement – whether the common
law doctrine of estoppel applies.
The respondent was employed as an Accountant of the appellant. The respondent
instituted an unfair termination claim in the Commission for Mediation and
Arbitration, alleging to have been unfairly terminated. The CMA found in his
favour. On revision, the Labour Court upheld the CMA award. Not satisfied with
the court’s decision the appellant preferred this appeal.
422
Held: i) In a situation where by necessary implication a party agrees to the offer
for termination and receives the agreed terminal benefits, such circumstance,
amounts to compliance with s. 2 (1) (a) of the Law of Contract Act [Cap. 345
R.E.2019].
ii) The Common Law doctrine of estoppel bars the parties, on termination by
agreement from running away from their previous freely made choices.
Appeal allowed
Cases referred to

(1) Section 2 (1) (a) of the Law of Contract Act [Cap. 345 R.E.2019].
Mr. Nyakiha and Ms. Mcharo, State Attorneys, for Appellant

Messrs. Laswai and Tairo, for Respondent

Dated 28th April, 2022
RUMANYIKA, J.A.: Briefly, on 15/04/2013 Linus Leonce, the respondent was

employed as an Accountant by Muhimbili National Hospital, the appellant. On
03/03/2017, the respondent instituted an unfair termination claim in the
Commission for Mediation and Arbitration for Dar es Salaam at Dar es Salaam
(the CMA) alleging that the appellant had terminated his employment without
following the applicable procedure. The CMA found in his favour.
Consequently, it awarded him 12 months' remuneration as compensation. On
revision, the High Court upheld the award. Not satisfied, the appellant now
appeals.
It is evident on record that the appellant had wanted to employ a senior
accountant but instead of advertising for that post, it advertised for an accountant
vacancy which the respondent successfully applied for and was recruited. He
worked with the appellant until on the 24/06/2014 but all along he never got paid
any remuneration. The reason assigned by the appellant for not paying him any
423
remuneration was that the Central Establishment had not sanctioned the
employment. Vide a letter with Reference No. MNH/CPF.10832/01 of
24/06/2014 (Exhibit A2) the appellant terminated the respondent's employment
based on the terms therein set forth. Accordingly, the respondent replied by a
letter dated 27/06/2014 (Exhibit D2). Then he was paid terminal benefits.
The appellant's memorandum of appeal revolves around one point essentially.
That the High Court construed and evaluated the two letters and the evidence on
record wrongly by holding that the two letters did not mean the employer's offer
to terminate the contract and the employee's acceptance respectively.
When the appeal came up for hearing, Mr. Daniel Nyakiha and Ms. Debora
Mcharo, learned State Attorneys appeared for the appellant. Messrs John Laswai
and Makarius Tairo, learned counsel appeared for the respondent.
Now, before us the central issue is whether the termination of the respondents’
employment contract by the appellant’s inadvertent public advertisement for the
post, letter with Ref. No. MNH/AS/2013 dated 09/04/2013) was preceded by a
mutual agreement. At least it is not disputed that between 15/04/2013 and
24/06/2014, inclusive of the dates the two had an employer and employee
relationship.
For ease of reference and appreciation of how their contractual relationship
ended, we wish to extract the relevant part of the appellant's letter Ref. No.
MNH/CPF.10832/01 of 24/6/2014 (Exhibit D1) as follows:
THE TERMINATJON OF EMPLOYMENT CONTRACT
BY AGREEMENT
Reference is made to your letter dated 5th May, 2014 and 18th
June, 2014 the above captioned subject
We regret to inform you that the Hospital has failed to
resolve your employment with the Government owing to
the variation of employment permit which authorized the
employment of Senior Accountant and the position of
accountant which you were offered. The Hospital has
subsequently failed to secure your employment as you did not
meet the required experience for the permitted position of
Senior Accountant. In this regard, the Hospital has not been
able to receive your salary to pay you accordingly from the
date of your employment to date.
424
Considering the frustration of this employment contract,
the Management of the hospital is proposing to terminate
it with immediate effect. Following this termination, you will
be considered for the following benefits: -
1. Salary arrears from 15th April 2013 up to June 2014
amounting to Tshs 28,000,500/=
2. Salary in lieu of short notice of shs. 1,964,000/=
3. 10% NSSF total employer's contribution of shs.
2,800,050/=
4. Repatriation expenses of Tshs. 2,782,200/=
5. Severance allowance of Tshs. 458,266/= and salary in lieu
of annual leave of Tshs. 1,964,000/=
Please indicate in writing your acceptance or otherwise on
the termination of employment and the payment of
related benefits as considered by the Management as the
best option to resolve the problem of your employment
with the Hospital
Yours sincerely,
MAKWAIA M. MAKANI DIRECTOR OF HUMAN

RESOURCES"
[Emphasis added]
It is evident from the above quotation that the appellant notified the respondent
of its proposal for termination of the respondent's employment with immediate
effect following frustration of the contract of service for which the respondent
was invited to consider and, if accepting the terms, indicate it in writing. The
respondent in his reply, a letter dated 27/06/2017 (Exhibit D2), acceded as partly
indicated below:
...RE: TERMINATION OF EMPLOYMENT CONTRACT
BY AGREEMENT
Refer to the captioned matter above. In response to your letter
dated 24th June, 2014 with reference no. MNH/CPF.10832/01,
I bring to your attention as follows: -
425
That regarding to our job termination I have nothing to object
from the description of paragraph 3 item 1, 2, 3, 4, 5
indicated on the latter as referred in above.
However, my request is that, the said terminal benefits be
paid within two weeks from the date of receiving this letter
much on that, the said payment be paid at single installment
to avoid disturbance and not otherwise.
Finally taking into consideration that my salaries and other
benefits have taken almost a year and a half without payment
now I beg for the said terminal benefits are paid as prompt as
possible. This will enable me to comply with other
alternatives especially on my subsequent job seeking
respectively.
Sgnd
.................
LINUS LEONCE
It is our considered opinion therefore that from the above parties' partly quoted
letters, any prudent reader would conclude; One, that on account of frustration
of the contract of service between the parties, the appellant had no other option
but to terminate the contract and pay the appellant the proposed benefits. Two,
the appellant's letter (Exhibit A1) was but an offer and proposal for termination.
Three, the respondent had two voluntary options, to accept the offer and the
proposed terminal benefits or otherwise. Without much ado, the respondent
accepted the offer of mutual termination of the contract. He acceded to the
proposed termination upon the appellant's undertaking to pay the proposed
package within two weeks of his reply. Accordingly, the respondent was paid.
They were done and parted company.
It follows therefore that with all that undisputed, by necessary implication on
such terms the respondent agreed the appellant's offer for termination and
received the agreed terminal benefits. In other words, the appellant did all the
needful in compliance with s. 2 (1) (a) of the Law of Contract Act [Cap. 345
R.E. 2019].
In other words, the Common Law doctrine of estoppel bars the parties, in this
case the respondent from running away from their previous freely made choices.
426
It bars them denying their previous freely made choices. The ground of appeal
is allowed. We think the labour dispute was misconceived.
For the reasons herein above, we have endeavored to give, we quash the
impugned decision and set aside the resultant orders. We make no order as to
costs because the appeal arises from a labour dispute.
Appeal allowed
MWAMVITA MZIBA & OTHERS v. THE REGISTERED

TRUSTEES OF BUGANDO MEDICAL CENTRE
AT MWANZA
(Appeal from the judgment and decree of the High Court of Tanzania at
Mwanza, Nyerere, J., dated 9th November, 2017 in Revision No. 58 of 2017)
Application for extension of time – Application for extension of time to file
appeal out of the statutory time – Applicants allege that the proceedings, the
subject of appeal were tainted with illegalities and that the said proceedings also
contained topographical errors which could have made the appeal defective –
Whether sufficient cause was shown.
The applicants were employees of the respondent as accountants responsible for
cash collections and computer operations. Their service was terminated by the
respondent after being accused of misconduct and gross negligence causing loss
to the respondent. Aggrieved, the applicants referred their complaint to the
Commission of Mediation and Arbitration, where it decided in their favour.
Aggrieved by the CMA decision, the respondent institued a revision at the High
Court Labour Division. The High Court quashed the decision of the CMA, the
appellants were aggrieved hence, this appeal.
Held: i) The discretionary power of the Court to extend time for party to do an
act authorized by the Rules after the expiry of the prescribed time, are exercised
upon good cause being shown as provided for under Rule 10 of the Rules.
427
ii) It is settled principle of the law that, the term "good cause", may consider all
the material factors brought by the applicant for it to exercise its discretionary
powers to extend its discretionary powers to extend time in given circumstances.
iii) The Court has been insistent that every day of delay must be accounted for
and delay of even a single day has to be accounted for, otherwise there would be
no point of having rules prescribing periods within which certain steps have to
be taken.
Cases referred to
(1) National Microfinance Bank PLC v Oddo Odila Mbunda, Civil Appeal
No. 95 of 2015
(2) Henry Leonard Maeda and other v. Ms. John Anael Mongi, Civil
(3) Lyamuya Construction Company Ltd v. Board of Registered Trustees of
Young Women’s Christian Association of Tanzania, Civil Application No.
2 of 2010
(4) Sabastian Ndaule v. Grace Rwemafa, Civil Application No. 4 of 2014

(1) Rule 10 of the Tanzania Court of Appeal Rules 2009
Mr. Sekundi, for Applicants

Mr. Nasimire, Respondent
RULING OF THE COURT
Dated 22nd February, 2022
MAKUNGU, J.A.: The applicants wish to invoke the jurisdiction of this Court
to extend time under rule 10 of the Tanzania Court of Appeal Rules 2009 (the
Rules).
428
The intended order is meant to enable the applicants file an appeal against the
Judgment and decree of the High Court Labour Division, No. 58 of 2017 at
Mwanza delivered by Nyerere, J dated 9th November, 2017, out of the statutory
time.
In the notice of motion, the following grounds have been cited in support of the
application and that are:
(a) The impugned Judgment had contained typographical
errors which were subsequently rectified by the High
Court through Labour Application No. 12 of 2019 at the
instance of the applicants and then the order made known
to the applicants on 28th Mar 2021.
(b) The decision and proceedings in Revision No. 58 of 2017
was tainted with illegalities in that: -
(i) The honourable Judge relied on the respondent's
submission instead of evidence on record to hold
that the applicants had admitted the disciplinary
offence in the disciplinary hearing form (Exh. D6).
(ii) The Exh. D.6 did not contain anything to be termed
as admission from the applicants, but the
honourable Judge illegally and arbitrarily held
otherwise without assigning any reasons as what
was imported was extraneous.
(iii) The impugned decision emanated from the
revision which was time barred.
The applicants filed a supporting affidavit sworn by Mr. Julius Mushobozi, their
advocate, and written submissions drawn by the same learned advocate in terms
of rule 106 (1) of the Rules. Similarly, the respondent filed an affidavit in reply
taken by Mr. Lufingo Mwaipopo, a Principal Officer of the respondent. Apart
from filing an affidavit in reply, the respondent through Mr. Anthony K.
Nasimire, learned advocate, has also filed a notice of preliminary objection the
same was abandoned during the hearing of this application.
From the contents of the supporting affidavit and written submissions, the
following background, relevant to the application at hand, can be deciphered.
The applicants were employees of the respondent as accountants responsible for
cash collections and computer operations. On 5th June, 2013 their service was
429
terminated by the respondent after being accused of misconduct and gross
negligence causing loss to the respondent. Aggrieved, the applicants referred
their complaint to the Commission of Mediation and Arbitration (CMA) where
it decided on their favour.
Aggrieved by the CMA decision, the respondent appealed to the High
Court Labour Division at Mwanza in Labour Revision No. 58 of 2017 where the
High Court (Nyerere, J) on 9th November, 2017 quashed the decision of the CMA
and held that the applicants’ termination was for a valid reason.
On 10th November, 2017 the applicants applied for copies of the proceedings and
exhibits in the High Court Labour Division. On 8th December, 2017 they lodged
the notice of appeal in this Court against the impugned decision. So far so good,
and the question that lingers and calls for an answer is why the applicants did
not file their intended appeal within time after filing the notice of appeal on 8th
December, 2017. The answer to this question is provided by the applicants under
paragraph 14 of the supporting affidavit which I reproduce below:
14. That we could not lodge appeal against the judgment with
typographical errors within 60 days because the decree and
judgment were at variance.
Under paragraph 12 of the same affidavit the delay has been caused by the order
for rectification of Judgment that was supplied to the applicants on 28.05.2021.
That soon after being supplied with the same, they started making preparation
for this application.
The respondent opposes the application as earlier intimated, as sounded in the
affidavit in reply and written submission in opposition to the application. The
critical relevant part of the affidavit in reply is paragraph 5 which is a reply to
paragraphs 12,13,14,15 and 16 of the supporting affidavit, and it goes thus:
That according to what is deponed by the said JULIUS
MUSHOBOZI in paragraphs 12,13,14,15 and 16 of his
affidavit does not constitute a good reason for the delay in
filing the present application.
At the hearing of this application on 14th February, 2022, Mr. B. Sekundi learned
advocate appeared for the applicants, whereas, the respondent had the services
of Mr. Anthony K. Nasimire, learned advocate.
430
The period for lodging an appeal is 60 days from the day of lodging notice
according to Rule 90(1) of the Rules and I should add that the said rule provides
the general rule in filing civil appeals where, see also the case of National
Microfinance Bank PLC v Oddo Odila Mbunda, Civil Appeal No. 95 of 2015
(unreported). When appellant has no reason for not filing his appeal within 60
days, he has no basis for making use of any other provisions that provides for
exceptions.
When the applicants lodged their notice of appeal on 8th December, 2017 they
ought to have lodged their appeal by 8th February, 2018. However, instead of
filing the appeal they filed the application for rectification on 18th April, 2019.
The fear that the appeal would have been incompetent because of typographical
errors, is bone out of a misconception as rightly submitted by Mr. Nasimire.
I have dispassionately followed the rival submissions for and against the
application. I wish to state at the outset that, it is settled position that the
discretionary power of the Court to extend time for an applicant to do an act
authorized by the Rules after the expiry of the prescribed time, are exercised
upon good cause being shown as provide for under Rule 10 of the Rules.
I am mindful of the fact that there is no single definition of the term "good cause"
stated in the above Rule, but the Court in determining good cause, may consider
all the material factors brought by the applicant for it to exercise its discretionary
powers to extend its discretionary powers to extend time in given circumstances.
In the case of Henry Leonard Maeda and other v. Ms. John Anael Mongi, Civil
Application No. 31 of 2013 (unreported), it was stated that:
In considering an application under the rule, the Courts many
take into consideration, such factors as the length of delay, the
reasons for the delay and the decree of prejudice that the
respondent may suffer if the application is granted.
In the light of that established position, the question to be determined herein is
whether or not the applicants have been able to show good cause to justify their
application.
Submitting on the grounds justifying the application Mr. Sekundi raised 3 points
of illegality the major one is that the Revision No. 58 of 2017 was time barred.
This ground of illegality was vehemently opposed by the respondent on the
ground that such allegation had never been raised before the High Court by the
applicants and cannot be raised in the Court of appeal. So, I do not find the
431
illegality, complained of by the applicants. Therefore, I agree with Mr.
Nasimire's submission that Civil Revision No. 58 was not time barred. It is my
settled opinion that, the alleged illegality cannot raise any arguable point of law
worth to be addressed by the Court.
In the case of Lyamuya Construction Company Ltd v. Board of Registered
Trustees of Young Women’s Christian Association of Tanzania, Civil
Application No. 2 of 2010 (unreported) the Court stated that:
Since every party intending to appeal in my view, be said that
in VALAMBIA'S Case, the Court meant to draw a general rule
that every applicant who demonstrates that his intended appeal
raised point of law should, as of right, be granted extension of
time if he applies for one. The Court there emphasized that
such point of law must be that of sufficient importance and, I
would add that it must also be apparent on the face of the
record, such as the question of Jurisdiction; not one that would
be discovered by a long-drawn argument or process.
Being guided by the above decision, I must state that nothing on the record of
this application suggests that there was illegality worthy of consideration by the
Court to justify the Court's exercise its discretionary powers to extend time as
sought by the applicants.
Now reverting to the reasons for delay advanced by the applicants, I do not think
that I need to dwell on the long background of this matter. I will go straight to
consider the unaccounted for delay as parties do not discount that the applicants
wasted time waiting for corrections from the Court. From 14th day of November,
2017 up to 1st day of June, 2021 when this application was filed, it is over three
years.
The applicants in paragraph 13 of the affidavit admitted the fact that the delay
has taken very long time. I find it important to reproduce paragraph 13 of the
said affidavit:
13.That after we were supplied with the said above referred
order for rectification, we find it for betterment of justice that
craved prayer will save the purpose. It is now 3 years and 181
days since the judgment was delivered, and the reasons for
such delay are beyond our human control for the reasons
advanced for each day of delay.
432
As it can be observed from the above paragraph, the applicants pleaded that the
delay is beyond human control. I don't think so. The applicants instead of filing
the appeal they decided to file application for rectification. In my view more
rectification is needed in the title of respondent. The respondent at CMA was
known as "the Registered Trustees of Bugando" but at the High Court and this
Court is known as "the Registered Trustees of Bugando Medical Centre."
In the circumstances, I entirely agree with the counsel for the respondent, who
rightly argued, in my view, that the applicants have failed to account for delay
of more than 3 years. The Court has been insistent that every day of delay must
be accounted for and in the case of Sabastian Ndaule v. Grace Rwemafa, Civil
Application No. 4 of 2014 (unreported) the Court stated that, delay of even a
single day has to be accounted for, otherwise there would be no point of having
rules prescribing periods within which certain steps have to be taken.
For the foregoing and taken into consideration the circumstances pertaining in
the current application, it is my view that no good cause has been shown by the
applicants to warrant extension of time sought. In the final result, this application
is devoid of any merit and the same is dismissed. It is so ordered.
NATIONAL MICROFINANCE BANK LTD (NMB) v. NEEMA

AKEYO
ATARUSHA
(Appeal from the Judgment of the High Court of Tanzania at Arusha, Nyerere,
J., dated 2nd June, 2017 in Revision No. 35 of 2017)
Appeals – Court of Appeal – whether appeals to the court of appeal should lie
on point of law only - section 57 of the Labour Institutions Act, Cap 300.
Discrimination – termination on ground of discrimination – factors of
discrimination – section 7(4) ELRA, Cap 360
433
Evidence - Appellant did not cross-examine the respondent on the question of
being discriminated – Whether appellant admitted what was stated by
respondent
The respondent was employed by the appellant as a Bank teller. The employment
was terminated on accusations of absenteeism and insubordination. The
respondent instituted a complaint at the CMA. CMA decided in favour of the
respondent. The appellant, lodged an application for revison in the High Court
seeking to have the CMA decision revised. However, the application was
dismissed and instead, the CMA's award was confirmed. Still dissatisfied, the
appellant has preferred an appeal to the Court.
Held: i) Appeals to the Court shall only be on points of law.
ii) The act of an employer treating some staff differently from others in
exercising the right of worship during working hours contravened the provisions
of section 7 (4) of the ELRA which abhors discrimination at place of work.
iii) As the appellant did not cross-examine the respondent on the question of
being discriminated by the employer that means the appellant admitted what was
asserted by the respondent in the evidence which is settled law in our
jurisdiction.
Appeal dismissed
Cases referred to
Revenue Authority, Civil Appeal No. 167 of 2019;
(2) Kilombero Sugar Company Limited v. Commissioner General (TRA),
eKLR
(4) CGM Tanzania Limited v. Justine Baruti, Civil Appeal No. 23 of 2020
(5) Pangea Minerals Limited v. Gwandu Majali, Civil Appeal No. 504 OF
2020
(1) Section 7 (9) of the Employment and Labour Relation Act
434
(2) Section 25 (2) of the Tax Revenue Appeals Act, Cap. 408 R.E. 2006.
(3) Article 1 of the Discrimination (Employment and Occupation)
Convention, 1958,
Mr. Kamala, for Appellant,

Mr. Asubuhi, fot Respondent

Dated 21st February, 2022
MUGASHA, J.A.: This is an appeal against the decision of the High Court
which dismissed an application for revision and confirmed the decision of the
Commission for Mediation and Arbitration (the CMA). The background
underlying this appeal is briefly as follows: The respondent was employed by
the appellant as a Bank teller at its Branch in Karatu. The employment
commenced on 27/10/2010 up to 5/6/2015 when the appellant terminated the
respondent on accusations of absenteeism and insubordination. This made the
respondent to refer the matter to the CMA claiming that the termination was
procedurally and substantively unfair and prayed to be paid compensation for
breach of employment agreement.
The appellant denied the allegations, contending that termination was for valid
reasons and requisite procedures were complied with. It was the appellant's
contention that, the termination was prompted by the respondent's failure to
attend at work on Saturdays which was in contravention with the local
employment agreement and the Human Resource Policy and NMB PLC Code
of conduct.
After a full trial, the arbitrator was satisfied that, the respondent was unfairly
terminated both substantively and procedurally in the wake of absence of proof
from the appellant that the respondent was not attending work on Saturdays.
Further to that, it was also found that after the respondent was found guilty, she
was not given opportunity to give mitigating factors. As a result of the said unfair
termination, the CMA awarded the respondent 36 month's salary as
compensation.
Undaunted, the appellant, lodged an application to the High Court seeking to
have the CMA decision revised. However, the application was dismissed and
instead, the CMA's award was confirmed on ground that the termination was
435
substantively and procedurally unfair. Apart from the High Court concluding
that the appellant had failed to prove that the respondent was not attending at
work on Saturdays, it found the appellant's conduct to have amounted to
discrimination against the respondent on religious basis which was contrary to
the Constitution of the United Republic of Tanzania, 1977 and the Labour Laws.
Still dissatisfied, the appellant has preferred an appeal to the Court. In the
Memorandum of Appeal, she has fronted five grounds of complaint as follows:
1. That, the Judge erred in law and in fact by holding that
the NMB Human Resource and Policy of 2013, staff
Rules and the NMB Code of Good Practice contravene
section 7 (9) of the Employment and Labour Relation
Act.
2. That, the Judge in determining ground No. 1 of Revision
erred in law and fact by ignoring exhibit D-1 the final
written warning issued to the respondent herein exhibits
D-6 disciplinary hearing thus arriving at the wrong
finding.
3. That, the Judge erred in law and fact by holding that the
complaint was terminated on ground of discrimination
based on region which was not framed as an issue
neither at the Commission for Mediation and
Arbitration nor at the High Court and which was not
in the Jurisdiction of the court to determine
the applicant was not entitled to summon the respondent
herein in the disciplinary hearing in view of Rule 1 of
General Offences under GN No. 42 of 2007 the
Employment and Labour Relation (Code of Good
Practice) Rules.
the applicant herein did not comply with legal procedures
before terminating the respondent herein while the record
clearly depicts the opposite.
At the hearing the appellant was represented by Paschal Kamala, learned counsel
whereas the respondent had the services of Mr. Yoyo Asubuhi, learned counsel.
436
Having heard the contending submissions of the learned counsel, the main issue
for determination is whether or not the termination of the respondent was unfair
both procedurally and substantively and whether the appellant was denied a right
to be heard. We shall dispose of the 1st and 4th grounds together and the 3rd and
5th grounds of appeal will each be determined separately.
At the outset, we wish to restate that, in terms of section 57 of the Labour
Institutions Act, appeals to the Court shall only be on points of law. The said
provision stipulates as follows:
Any party to the proceedings in Labour Court may appeal
against the decision of the High Court to the Court of Appeal
on points of law only.
What constitutes a question of law upon which a party could appeal to the Court
was considered in the cases of Atlas Copco Tanzania Limited v. Commissioner
General, Tanzania Revenue Authority, Civil Appeal No. 167 of 2019; and
Appeal No. 14 of 2007 (both unreported). In the latter case, the Court defined
the phrase "matters involving questions of law only" upon which a party could
appeal to the Court from any decision of the Tax Revenue Appeals Tribunal in
terms of section 25 (2) of the Tax Revenue Appeals Act, Cap. 408 R.E. 2006.
Having referred to the decision of the Supreme Court of Kenya in Gatirau Peter
Munya v. Dickson Mwenda Kithinji & Three Others [2014] eKLR, the Court,
then, defined the phrase "question of law" as follows:
.... a question of law means any of the following: first, an issue
on the interpretation of a provision of the Constitution a
statute/ subsidiary legislation or any legal doctrine on tax
arrived at by the Tribunal where there is failure to evaluate the
evidence or if there is no evidence to support it or that it is so
perverse or so illegal that no reasonable tribunal would arrive
at it.
The cited decision defining what entails a question of law was adopted by the
Court in the labour cases of CGM Tanzania Limited v. Justine Baruti, Civil
437
Appeal No. 23 of 2020 and Pangea Minerals Limited v. Gwandu Majali, Civil
Appeal No. 504 OF 2020 (both unreported).
We have deliberately restated the above because apparently, although the
appellant's counsel abandoned the 2nd ground of appeal which was purely a
factual issue, yet the substantive part of the appellant's written submissions on
the ground of appeal addresses factual issues relating to the evidence paraded
before the CMA and the respective determination by the two courts below. As
such, in the event there is no complaint on the misapprehension of the evidence
on the part of the two courts below, the determination on factual matters ended
at the High Court. As such, in compliance with the dictates of the law, without
prejudice, we shall not deal with the complaint relating to factual questions, save
where we deem it necessary for the better meeting the ends of justice.
In grounds one and four, we could not discern any prejudice on the part of the
appellant sufficing to be a ground of complaint. In relation to ground one,
although the learned High Court Judge stated that the NMB Human Resource
Policy contravenes section 7 (9) of the ELRA, that was a slip of the pen because
the provision defines what is an employment policy or practice. That apart, in
the written submissions, the appellant addressed a totally different issue
prescribed working hours in week stated in the ERLA and the appellants' Human
Resource staff rules which is not compatible with the purported ground of
complaint.
In respect of the 4th ground, together with the related written submission
basically we could not discern any complaint therein as the appellant merely
faults the learned Judge in holding that, the appellant was not entitled to summon
the respondent. Apparently, the issue before the CMA and the High Court was
whether the termination was fair both substantively and procedurally, and not
whether the appellant was justified to open up investigation against the
respondent. In a nutshell, in the 1st and 4th grounds the appellant seems to be
raising new issues which were not dealt with in the courts below and as such, do
not at any stretch of imagination qualify to be grounds of appeal.
Next is the 3rd ground of appeal and the gist of the appellant's complaint is that
the ground of discrimination based on religion was not framed as an issue at the
CMA and as such; the High Court lacked jurisdiction to determine it and yet, the
appellant was denied a right to be heard. Parties locked horns on the issue having
submitted contending arguments.
438
We begin with what was decided by the learned High Court Judge and the
aspects considered. At page 379 - 381 of the record of appeal, the learned High
Court Judge considered: one, the right of worship as enshrined under Article 1
of the Discrimination (Employment and Occupation) Convention, 1958, Article
19(1) of the Constitution and sections 7(4) (a) of ERLA, two, the respondent's
submission at page 380 of the record to the effect that, the appellant's act to allow
some of the employees including the Branch Manager to exercise their freedom
of worship and at the same time deter the respondent from enjoying such rights.
Thus, she concluded as follows:
Therefore (the) respondent was terminated for breach of NMB Code of Good
Practice, in which the said policy and staff Rules contravene section 7(9) of the
ERLA ... therefore 1 ... conclude that the applicant ground of terminating
respondent on ground of absenteeism due to the facts the respondent used the
two hours for worship it is not only to infringe the constitution of the United
Republic of Tanzania, but also the applicant contravened section 7 of the ERLA
which prohibit discrimination on ground of religion in the work place.
In view of the said excerpt, it is not true as suggested by Mr. Kamala that, the
issue of discrimination cropped up at the High Court. In fact, the learned High
Court Judge applied the law on the factual account on how the respondent was
treated differently from other staff in exercising the right of worship during
working hours. In the circumstances, as correctly found by the learned Judge of
the High Court, the act of the appellant as an employer contravened the
provisions of section 7 (4) of the ELRA which abhors discrimination at place of
work in the following terms:
No employee shall discriminate, directly or indirectly, against
an employee in any employment policy or practice, on any of
the following grounds; colour, nationality, tribe or place of
origin, race, national extraction, social origin, political opinion
or religion, sex, gender, pregnancy, marital status or family
responsibility, disability, HIV/AIDS, Age, or station of life.
[Emphasis supplied]
In respect of the appellant's complaint that the issue surrounding termination
based on discrimination cropped up at the High Court, we found it wanting. We
are fortified in that regard because: one, the respondent's reply on accusations
levelled against her by the appellant, is reflected at page 47 of the record of
appeal as follows:
439
... it is therefore apparent to draw a conclusion that every
person has absolute right of worship without being interfered
by any other person ... I find it very unjust to be charged on
ground of my faith as the same amount to nothing but
discrimination which is prohibited.
Secondly, before the CMA, it is glaring that apart from the respondent denying
the charges on absenteeism her response is reflected at page 331 of the record of
appeal is to the effect that, on Saturdays she reported at work place and at ten
o'clock, she sought and obtained permission from the manager to attend religious
services. She as well, testified that the Muslims were given such permission on
Friday's, then when asked on the issue of discrimination she replied in the
affirmative as follows:
kwa sababu wengine walikuwa wanaruhusiwa kusali e.g.
waislam, mimi kwenda, kusali llikuwa tatizo.
The unofficial English rendering is that, while others e.g the
Muslims were given permission to go for prayers, on my part
going for prayers was considered as a problem.
Thirdly, yet before the High Court, in the written submissions the appellant
canvassed the issue of termination based on religious discrimination at pages
351 to 352 of the record calling upon the learned High Court to determine which
she is now denying and shifting the goal post.
In the light of what, we have endeavoured to unveil, we agree with Mr. Asubuhi
that, apart from the High Court being seized with jurisdiction to exercise revision
powers, the appellant was not denied the right to be heard on the issue of
termination based on discrimination and the appellant's complaint suggested by
Mr. Kamala is with respect, apart from being untrue, in our considered view, it
is an afterthought. Besides, as the appellant did not cross-examine the respondent
on the question of being discriminated by the employer that means the appellant
admitted what was asserted by the respondent in the evidence which is settled
law in our jurisdiction. In the premises, the cases of Abdul Athumani v. Republic
(supra), Remigious Muganga v. Barrick Bulyanhulu Gold Mine (supra) and
Mbeya Rukwa Autoparts v. Jestina George Mwakyoma (supra) cited to us by the
appellant's counsel all dealt with omission and remedy on a denial of a right to
440
be heard which is not the case here and as such, those decisions have been with
respect, cited out of context. In the premises, the 3rd ground is not merited at all.
Finally, we come to the last ground in which the learned High Court Judge is
faulted for having held that the termination was procedurally and substantially
unfair. While Mr. Kamala argued that the law was complied with to the letter,
Mr. Asubuhi argued to the contrary. In the event, the learned High Court Judge
found that the termination was based on invalid reasons which rendered the
termination substantively unfair, the determination of procedural compliance
was inconsequential and could not add any value in the wake of lacking valid
reasons for the termination. Without prejudice, that apart, Rule 13 of GN
42/2007 was to some extent followed except for the respondent being denied to
give mitigation before the appellant's final verdict which offended Rule 13(7) of
GN 42 of 2007.
In view of what we have endeavoured to discuss, apart from agreeing with Mr.
Asubuhi, the respondent’s counsel, we are satisfied that the termination of
respondent from employment was substantively unfair and, in the circumstances,
both the CMA and the High Court were justified to award 36 month's salary as
compensation. Thus, in the absence of sound reasons to vary the decision of the
High Court, we find the appeal not merited in its entirety and it is hereby
dismissed.
Appeal dismissed
NATIONAL MICROFINANCE BANK v. LEILA MRINGO &

OTHERS
AT TANGA
(MZIRAY, MWAMBEGELE, and KEREFU, JJ.A.)
(Appeal from the Judgment of the High Court of Tanzania at Tanga, Mipawa,
J., dated 16th June, 2017 in Revision No. 24 of 2015)
441
Termination of employment - Issue whether the appellant had fair reasons to
terminate the respondents was not subject of revision before the High Court
because it was never raised before the CMA – Issue was raised suo motu by the
High Court - Whether the High Court raised the issue without affording the
parties the right to be heard on it and whether it was inextricable to determine
the grounds for revision without referring to substantive fairness of the
termination.
Termination of employment – burden of proof – circumstances under which it
can be shifted.
Termination of employment - business in which the respondents were engaged
requires unqualified good faith and honesty, integrity, trust and confidence -
Respondents showed lack of good faith 'as well as gross negligence and
misconduct – Whether termination was the appropriate sanction to the
respondents.
Interpretation – grant of reliefs - Labour Court granted the reliefs sought by the
respondents conjunctively instead of granting them disjunctively – Whether the
High Court properly interpreted the provisions of section 40 (1) (c) of the ELRA.
The three respondents were employees of the appellant working as bank clerks.
After termination from employment, they successfully challenged their
termination by filing a labour dispute with the Commission for Mediation and
Arbitration. The CMA decided in favour of the respondents. The appellant was
aggrieved by the decision of the CMA, consequently, he filed a revision in the
Labour Division of the High Court. The High Court upheld the decision of CMA.
The appellant was dissatisfied with the court’s decision hence, this appeal.
Held: i) While it is true that the issue was not discussed before the CMA, such
lack of discussion was due to failure by the appellant to raise it which was her
obligation as per section 39 of the ELRA
ii) Section 39 of the ELRA has the effect of shifting the burden of proof of fair
termination to the employer in any proceedings concerning unfair termination.
In such cases, the employee’s duty is simply to allege termination and that it was
unfair. In the circumstances, it would have been an abrogation of duty on the
part of the High Court to sit back and close its eyes to that important aspect for
determination of the parties' rights under the pretext that it had not been
specifically raised by the appellant as a ground for revision.
iii) It is undeniable that the business in which the respondents were engaged
requires unqualified good faith but the fact of the unreasonableness of
442
termination cements the fact that the respondents were unfairly terminated.
Termination of the respondents was, certainly, not justified.
iv) In the light of the provisions of section 13 of the Interpretation Act it is
beyond controversy that once "or", "other" and "otherwise" are used in a
provision of the law, they shall be construed disjunctively. In the premises, the
provisions of section 40 (1) (a), (b) and (c) of the ELRA which was enacted in
2004 after the coming into force of the Interpretation Act, must be construed
disjunctively.
v) The words "in addition to" used in section 40 (2) of the ELRA did not mean
to refer to awarding compensation in addition to reinstatement, rather, it meant
to refer to other entitlements of the employee under a different legislation or
agreement; such as severance pay and payments agreed upon by the employer
and employee. The subsection did not mean to include remedies already
specifically provided for as alternatives in subsection (1).
vi) 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) of the same section, it is provided that if the employer does not wish to
reinstate or re-engage, then compensation should be paid.

Cases referred to
(1) NAFCO v. Mulbadaw Village Council & Others [1985] T.L.R. 91
(2) Michael Kirobe Mwita v. AAA Drilling Manager [2014] LCCD 1
(3) NMB BANK PLC v. Andrew Aloyce, Revision No. 1 of 2013
(4) Elia Kasalile & 20 others v. The Institute of Social Work, Civil Appeal
No. 145 of 2016 - [2018] TZCA 92
(1) Section 40 (1) (a), (b) and (c) of the Employment and Labour Relations
Act [Act No. 6 of 2004]
(2) Rule 106 (10) (a) of the Court of Appeal Rules.
(3) Rule 32 (2) (d) of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, 2007 - GN No. 67 of 2007.
443
Mr. Kamala, for Appellant
Ms. Tesha and Mr. Mwasipu, for Respondents
Dated 20th May, 2020
MWAMBEGELE, J.A.: The three respondents were employees of the

appellant bank working as bank clerks at Madaraka Branch in the now city of
Tanga. They were terminated from employment on 21.12.2010. Irked, they
successfully challenged their termination by filing a labour dispute with the
Commission for Mediation and Arbitration (CMA). The CMA held that the
appellant had valid reasons for terminating the respondents but did not follow
the procedure prescribed by the law. It ordered the appellant bank to re-engage
them failure of which she was ordered to pay each respondent twelve months'
salaries as compensation pursuant to section 40 (3) of the Employment and
Labour Relations Act, Cap. 366 of the Revised Edition, 2009 (now 2019). We
shall henceforth refer to this legislation as simply the ELRA. The CMA was
quite explicit that it made the order in terms of section 40 (1) (b) of the ELRA
and rule 32 (2) (d) of the Labour Institutions (Mediation and Arbitration
Guidelines) Rules, 2007 - GN No. 67 of 2007.
The appellant was aggrieved by the decision of the CMA. She thus filed a
revision in the Labour Division of the High Court to assail it. We shall elsewhere
refer to the Labour Division of High Court as simply the High Court. The High
Court held that the appellant had no valid reasons to terminate the respondents
and that she followed the procedure prescribed by the law to terminate them. The
High Court made matters worse for the appellant, for instead of granting the
reliefs disjunctively, as the CMA did, it ordered· them conjunctively. That is, it
ordered reinstatement of the respondents as well as compensation of twelve
months’ salaries to each one of them for unfair termination. The High Court
purported to act as such under section 40 (1) (c) of the ELRA.
The decision of the High Court irritated the appellant. She thus has come to this
Court on the following three grounds of complaint; one, that the High Court
erred in law by taking into consideration matters that were not in dispute for
444
determination, two, that the High Court erred in law for improper interpretation
of Rule 12 (with .all subsections thereto) of the Employment and Labour
Relations (Code of Good Practice) Rules, 2007 - GN No. 42 of 2007 (henceforth
the Code of Good Practice) and, three, that the High Court erred in law by
holding that the respondents should be reinstated and be paid compensation
instead of one option of reliefs under section 40 (1) of the ELRA.
The appeal was argued before us on 10.02.2020 during which both parties were
represented. While the appellant appeared through Mr. Paschal Kamala, learned
advocate, Ms. Gladys Edes Tesha and Mr. Hekima Mwasipu, also learned
advocates, joined forces to represent the three respondents. Counsel for both
sides had earlier on filed their respective written submissions for or against the
appeal which they sought to adopt as part of their respective oral submissions.
At the hearing, they presented oral arguments to clarify their respective written
submissions as required by rule 106 (10) (a) of the Court of Appeal Rules.
Relating to the first ground of appeal, Mr. Kamala submitted that the issue
whether the appellant had fair reasons to terminate the respondents was not
subject of revision before the High Court because it never surfaced before the
CMA. He added that he was aware that the High Court considered substantive
fairness by invoking its powers under rule 28 of the Labour Court Rules, 2007
but that in so doing, it did not adhere to the requirement under the proviso to t at
rule that is giving opportunity to be heard to the party likely to be adversely
·affected by such revision. He added that in terms of rule 25 (1) (b) of the Labour
Institutions (Mediation and Arbitration Guidelines) Rules - GN No. 67 of 2007,
the parties are required to prove their respective cases through evidence and
witnesses who shall testify on oath and be cross-examined. That was not done in
the case at hand and the appellant was denied the right to be heard on that issue
raised suo motu by the High Court, he contended. Mr. Kamala cited NAFCO v.
Mulbadaw Village Council & Others [1985] T.L.R. 91 to drive home the point
that a party has a right to prove its case even if the witnesses are in hundreds.
On the second ground of appeal, Mr. Kamala submitted that the High Court did
not correctly interpret rule 12 of the Code of Good Practice. He submitted that
the nature of the job; the banking industry, needed a high degree of honesty,
integrity, trust and confidence and thus every transaction by bank employees
must be permeated with unqualified good faith. On this premise, he submitted,
such dishonesty by the respondents could not be tolerated. The decision of the
High Court in NMB BANK PLC v. Andrew Aloyce, Revision No. 1 of 2013
445
(unreported) was cited to buttress the point that dishonesty of a bank employee
amounts to a grave misconduct. He cited several other cases to reinforce this
point.
Regarding the third ground of appeal which faults the High Court ordering
reinstatement of the appellant as well as compensating them instead of only one
option under section 40 (1) of the ELRA, the learned counsel argued that the
word "or" in the subsection means that any of the options in (a), (b) and (c) may
be ordered. If Parliament intended that the word "or" in the section should be
construed to mean "in addition to", it could have stated so in express terms, he
argued. Mr. Kamala relied on section 2 (2) (a) of the Interpretation of Laws Act,
Cap. 1 of the Revised Edition, 2002 (now 2019); henceforth the Intetpretation
Act, to reinforce the point that the Court must construe and interpret the
provisions of law in a plain and ordinary meaning unless the context of the Act
is inconsistent with such application. He also referred us to the provisions of
section 13 of the same Act to buttress the point that when the words "are", "or"
and "otherwise" are used, they should be construed as meaning disjunctively not
conjunctively. The learned counsel argued that even though the respondents
were not entitled to any relief under section 40 of the ELRA, the High Court
made a fu, damental error in awarding two reliefs simultaneously. In the
premises, Michael Kirobe Mwita v. AAA Drilling Manager [2014] LCCD 1,
relied upon by the High Court to grant reliefs conjunctively, was decided per
incuriam, he contended.
Mr. Kamala did not stop there. He referred us to rule 32 (1) and (1) (a) and (b)
of the Labour Institutions (Mediation and Arbitration Guidelines) Rules - GN
No. 67 of 2007 which requires that an arbitrator shall not order reinstatement or
re-engage- where the circumstance surrounding the termination are such that a
continued employment relationship would be intolerable or in circumstances
where it is not reasonably practical for the employer to reinstate or re-engage the
employee. He argued that the High Court did not consider the circumstances
surrounding the termination of employment whether it was practical to reinstate
the respondents. He argued that the appellant is engaged in banking business
which requires utmost good faith and confidence and thus trust and
confidence were no longer between employer and employee as such
reinstatement was not practical. He added that the appellant proved that the
termination was fair as the respondents confessed to have committed the offence
and that the procedure for termination was complied with to the letter.
446
The learned counsel finally submitted that the judgment of the High Court was
erroneous as it was decided without due regard to the principles of labour laws
and regulations. He thus prayed that the appeal be allowed with a declaration
that the respondents were lawfully and properly terminated from employment.
/
For the respondent, Ms. Tesha took a lead role to clarify the _written submissions
in reply. She submitted that the High Court neither invoked its powers under
rule 28 of the Labour Court Rules, 2007 by raising the issue of substantive
fairness suo motu nor misdirected itself in considering matters not raised in the
revision before it. She contended that even though the appellant's grounds for
revision were based on challenging the arbitration award and the finding that the
procedure for termination was flouted, proper consideration of those grounds
called for consideration of both fairness of reasons and procedure for
termination. She submitted that the High Court was quite correct to take that path
as it is permissible by rule 12 (b) (iv) of the Code of Good Practice; to consider
the issue of consistent application of the sanction.
Regarding the second ground /of appeal which is a complaint that the High
Court improperly interpreted rule 12 of the Code of Good Practice, the learned
counsel submitted that, given the nature of the appellant's business; banking
business, termination was not the appropriate sanction to the respondents. She
added that the respondents were terminated not for being dishonest and
untrustworthy, but for negligence and misconduct. She thus argued that all the
cases cited by the appellant's advocate on this ground were distinguishable
because they were on dishonesty and lack of trust while the present case is one
on gross negligence and misconduct.
As regards the third ground which faults the High Court for ordering both the
reinstatement of the respondents and compensation, the learned advocate
submitted that the decision of the High Court ordering
reinstatement and compensation was proper in terms of section 40 (2) of the
ELRA.
Read in context, she submitted, section 13 of the Interpretation Act, lead
to the meaning that section 40 (1) of the ELRA may not neccessary be
construed disjunctively bearing in mind subsection (2) of the same provision
which uses the words "in addition".
In a brief rejoinder, Mr. Kamala submitted that had the High Court considered
the evidence available at pp. 394, 398, 402, 444 and 474, it would have realised
447
that termination of the respondents was not unfair as the respondents had already
been warned. Regarding interpretation of the words "in addition" in section 40
(2) of the ELRA, he contended that they refer to entitlement of an employee
under any other laws; they do not mean to refer to awarding compensation in
addition to reinstatement.
We have given the submissions of counsel for both sides the serious
consideration they deserve in the light of the entire record of appeal before us.
Having so done, we are now set to determine the appeal, the ball now being 'in
our court. We shall confront the grounds of appeal in the order they appear in
the memorandum of appeal and in the manner they were argued by the trained
minds for the parties. However, before going into the determination of the
appeal in earnest, we feel pressed to remark at this very outset of determination
that the learned counsel for the parties have injected a lot of industry to their
written as well as oral submissions for or, against the appeal. Each side argued
its case so well and with tenacity that we composed this judgment with ease. We
commend the advocates for the parties for this good work well done which
exhibits their calling to the bar. These learned counsel are truly officers of the
court; an example to emulate.
We now advert to the determination of the appeal. The first ground of appeal
seeks to fault the High Court for taking into consideration matters that were not
in dispute. The kernel of complaint by the appellant under this arm is that the
High Court raised on its own motion the issue of application of sanction
consistently without affording the parties the right to be heard on it. On the
other hand, the learned counsel for the respondents are firm that the High
Court could not have determined the grounds of appeal before it without making
reference to the issue whether the termination was fair. We have considered these
rival submissions by the learned counsel for the parties. Indeed, the gist of
complaint before the High Court was on the award and the procedural aspects of
termination. However, as rightly put by the High Court at p. 14 of the record
of appeal, the four grounds of appeal filed by the appellant herein made it
inextricable to determine them without referring to substantive fairness of
termination. We will let the words of the learned Judge of the High Court paint
the picture:
... I have read the record of the Commission and paid due
consideration to the submissions of both parties. For the
purpose of determining the present revision grounds one to
448
four of the applicant fall under substantive fairness and
procedure fairness and to what reliefs the parties were
entitled.
We think the learned Judge was quite in the right track to deal with the question
of fairness of termination in the revision before him. While it is true that the
issue was not discussed before the CMA, such lack of discussion was due to
failure by the appellant to raise it which was her obligation as per section 39 of
the ELRA which reads:
In any proceedings concerning unfair termination of an
employee by an employer, the employer shall prove that the
termination is fair.
We agree with the respondents' counsel that section 39 reproduced above, has
the effect of shifting the burden of proof of fair termination to the employer in
any proceedings concerning unfair termination. In such cases, the employee’s
duty is simply to allege termination and that it was unfair. In the circumstances,
it would have been an abrogation of duty on the part of the High Court to sit back
and close its eyes to that important aspect for determination of the parties' rights
under the pretext that it had not been specifically raised by the appellant as· a
ground for revision. We find this ground of appeal wanting in merits. We dismiss
it.
Second for determination is the complaint that the High Court did not
properly interpret rule 12 (with all its sub-rules) of the Code of Good Practice.
For ease of reference, we take the liberty t9 reproduce the rule:
(1) Any employer arbitrator or Judge who is required to
decide as to termination for misconduct is unfair shall
consider:
a) Whether or not the employee contravened a rule or
standard regulating conduct relating to employment;
(b) If the rule or standard was contravened whether or not:
(i) It is reasonable;
(ii) It is clear and unambiguous;
(iii) The employee was aware of it, or could
reasonably be expected to have been aware of it;
(iv) It has been consistently applied by
the employer; and
449
(v) Termination is an appropriate sanction for
contravening it.
(2) First offence of an employee shall not Justify
termination unless it is proved that the misconduct is so
serious that it makes a continued employment relationship
intolerable;
(3) The acts which may justify termination are:
(a) Gross dishonesty;
(b) Willful damage to property;
(c) Willful endangering the safety of others; (d) Gross
negligence (e) Assault on a co -employee, supplier, customer
or a member of the family of, any person associated with the
employer; and
(4) In determining whether or not the termination is
the appropriate sanction, the employer should consider
(a) The seriousness of the misconduct in the light of the
nature of the Job and the circumstances in which it
occurred, health and safety, and the likelihood of
repetition; or
(b) The circumstances of the employee such as the
employee's employment record, length of service, previous
disciplinary record and personal circumstances.
(5) The employer shall apply the sanction of
termination consistently with the way in which it has been
applied to the same and other employees in the past, and
consistently as between two or more employees who commit
same misconduct.
The crux of the complaint of the appellant is in the provisions of sub-rule (4) of
the rule; the bolded text above. The learned High Court Judge addressed this
point at some considerable length and detail. He traversed through cases and
legislation in this jurisdiction and South Africa to which, he said, we heavily
borrowed our labour laws and concluded at p. 24 of the record of appeal that:
Now applying the above principle from the highly persuasive
decision of the Highest Court of South Africa in labour
matters the employee respondents amount of money alleged
to have occasioned i.e. Tzs 191,000/= one hundred thousand
450
ninety-one for Leila Mringo, 82,000/= Tzs for Yahaya Ndao
eighty-two thousand and 128,000/= one hundred twenty
eight thousand shillings for Crossman Makere are not by and
large a big amount of money.
Regard must also be had to the fact that the employees occasioning loss of the
money alleged by the employer was not done intentionally by the respondents
employees. Furthermore, the employee’s respondents confessed and asked to be
pardoned. There was no evidence that the employees intentionally and malafide
committed the errors, which do occur in the banking business. In my view the
GRAVITY OF THE MISCONDUCT AND THE CIRCUMSTANCES OF THE
INFRINGEMENT taking into account other factors or circumstances/ (we will
note later on in this Judgment) the penalty or sanction of termination imposed
by the employer (applicant) to the employees (respondents) was by and large
TOO HARSH AND SEVERE A PENALTY. An oral or written warning on the
infringement of the rule could have sufficed in the circumstances.
Regard being had the meagre amount of money which the respondents
occasioned loss.
The learned Judge then discussed the provisions of rule 12 (4) (a) and (b) of the
Code of good practice and went on:
His regard to the employees' circumstances the employer
could have also considered employees” previous disciplinary
record, employees age and personal circumstances of the
employee.
In our instant case the employees have no record of disciplinary warnings or
other penalty; it was their first offence on occasioning loss, unintentionally a
normal in banking business. The age of the respondents employees who are
nascent in Banking business young workers and hence a country's wealth as they
expected to work for many years in the interest of the Bank and country at large.
It is undeniable that the business in which the respondents were engaged requires
unqualified good faith as rightly put by Mr. Kamala. Acts that impair good faith
such as dishonesty or deception may easily be construed as gross misconduct
and warrant termination of employment. In the instant case, the issue from the
very outset involved lack of good faith 'as well as gross negligence and
misconduct (not gross misconduct). While Mr. Kamala's arguments on lack of
good faith are in line with rule 12 of the Code of Good Practice, it appears to
451
us that the learned High Court Judge made a thorough review of that rule and
made a reasoned ruling on it; quite commendable an exercise. The learned
High Court Judge agreed that the actions indeed fell under the scope and purview
of the offences charged as observed by the CMA but disagreed on account of the
reasonableness of terminating the employees considering the other factors
contained in Rule 12 (4) of the Code of Good Practice. The fact of the
unreasonableness of termination cements the fact that the respondents were
unfairly terminated. As the Court held in Elia Kasalile & 20 others v. The
Institute of Social Work, Civil Appeal No. 145 of 2016 - [2018] TZCA 92 (at
www.tanzlii.org), that the reason for termination being not fair or unreasonable
amounts to unfair termination.
While subscribing to the finding of the High Court that the respondents
confessed to have committed the offences, we do not think it was correct to find
that the issues of dishonesty and deceit had been proven through admission by
the respondents. We also do not consider as correct the general observation of
the High Court that the respondents were first offenders who had not been
warned before. If anything, our perusal of the record of appeal unveils that the
respondents agreed to having occasioned loss but not to dishonesty or deceitful
conduct. The perusal at pp. 394, 398, 402, 444 and 474 of the record also reveals
that the second respondent was given a written warning for cash differences (pp.
394, 398 and 402) and the third respondent was also warned tor the same offence
(pp. 444 and 474). As such, proof of dishonesty and deceit by appellants should
have been found by the High Court to be wanting. Likewise, the finding that the
respondents were first offenders was not correct in respect of the second and
third respondents.
Save for the above trivial misdirections, we find nowhere else, on this point, to
fault the learned trial High Court Judge on his finding. One of the respondents
being a first offender, the amounts of losses involved in respect of each of the
three respondents being modestly small and in terms of rule 12 of the Code of
Good Practice reproduced ·above, termination of the respondents was, certainly,
not justified. It was unfair. The second ground of appeal collapses as well.
We now turn to determine the third ground of appeal which seeks to assail the
decision of the High Court awarding the respondents reinstatement and
compensation. In awarding these reliefs conjunctively the High Court purported
to act under section· 40 (1) (a) and (c) of the ELRA and its previous decision in
Michael Kirobe Mwita v. AAA Drilling Manager (supra). Mr. Kamala submitted
452
that this case was decided per incuriam. Having examined this decision in some
considerable detail, we are settled in our mind that Mr. Kamala is right. We shall
demonstrate.
First, on not awarding the reliefs disjunctively, Michael Kirobe Mwita v. AAA
Drilling Manager (supra) relied on a South African case of Amalgamated
Beverages Industries (Pty) Ltd v. Jonker (1993) 14 ILJ 1232 (LAC). That case
interpreted section 46 (9) (c) of the Labour Relations Act of South Africa which,
as the learned High Court put it, is in pari materia with our section 40 (1) (c) of
the ELRA. We have read the South African case and the provision under
reference. That provision is reproduced at p. 1254 of that judgment. Unlike the
High Court, we do not think it is in pari materia with our section 40 (1) (c) of
the ELRA. We will let the section speak for itself. Section 46 (9) (c) of the South
African legislation, as reproduced at p. 12,54 of the Amalgamated Beverages
Industries (Pty) Ltd v. Jonker (supra) reads:
The industrial court shall as soon as possible after receipt of
the reference in terms of paragraph (b), determine the dispute
on such terms as it may deem reasonable, including but not
limited to the ordering of reinstatement or compensation,
and the provisions of sections 49, 58, 62 and 71 shall mutatis
mutandis apply in respect of any determination made in terms
of this subsection insofar as such provisions can so be
applied:
Provided that such determination may include any alleged
unfair labour practice which is substantially contemplated by
the referral to_ the industrial council or with the terms of
reference of the conciliation board, determined in terms of
section 35(3)(b) [Emphasis supplied].
Flowing from the above, it is apparent that the High Court’s assertion in Michael
Kirobe Mwita v. AAA Drilling Manager (supra) that section 46 (9) (c) of the
South African Labour Relations Act is in pari materia with our section 40 (1)
(c) of the ELRA is but barren of truth. What the South African case observed
(at p. 1254) and which we think might have misled the learned trial Judge is that
compensation in addition to reinstatement could be ordered in terms of section
46 (9) (c) of the Labour Relations Act. Interpreting the bolded expression in the
quoted section above, the Judge of the South African Labour Court observed:
453
Reinstatement or compensation in the section must be read
conjunctively. The “or” is not disjunctive.
Much as we read askance the foregoing standpoint of the South African Court,
the bottom line is what we have already stated above that the Judge in
Amalgamated Beverages Industries (Pty) Ltd v. Jonker (supra) observing that
the "or" in the provision is not disjunctive, he was interpreting a provision which
is not in pari materia with our section 40 (1) (c) of the ELRA. Michael Kirobe
Mwita v. AAA Drilling Manager (supra) was therefore decided per in, curiam.
Secondly, in view of the clear provisions of the law and the Interpretation Act,
we do not see any pressing need to borrow a leaf from other jurisdictions while
such course of action conflicts with the local position.
We now turn to consider this section; section 40 (1) of the ELRA. For easy
reference, we reproduce it hereunder:
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 of 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 of not less than
twelve months' remuneration.
As seen above, the paragraphs of sub-section (1) are separated by the conjunction
"or". What does this entail? We find a resort to the provisions of section 13 of
the Interpretation Act will provide an answer. We reproduce section 13 of the
Interpretation Act hereunder for ease of reference:
13. Disjunctive construction of."or"
In relation to a written law passed or made after the
commencement of 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 of like meaning is added.
454
[Emphasis ours].
For the avoidance of doubt, sub-section (4) of section 2 of the Interpretation Act
provides:
In sections 13, 19, 20, 22, 23, 24, 33, 36(6), 43, 46, or 62 a
reference to any Act written law, enactment or subsidiary
legislation passed or made after the commencement of this
Act shall be construed so as not to include any enactment
which continues or directly amends, but does not repeal
entirely, the text of an existing written law.
In the light of the provisions/of section 13 of the Interpretation Act reproduced
above, we think it is beyond controversy that once "or", "other" and "otherwise"
are used in a provision of the law, they shall be construed disjunctively. In the
premises, the provisions of section 40 (1) (a), (b) and (c) of the ELRA which
was enacted in 2004 after the coming into force of the Interpretation Act, must
be construed disjunctively.
As good luck would have it, in the recent past, we traversed on this issue
when faced with an identical argument in National Microfinance Bank v. Victor
Modest Banda, Civil Appeal No. 29 of 2018 - [2020] TZCA 35 at
www.tanzlii.org; a case whose facts and issues fall in all fours with the instant
case. In the judgment we rendered as recently as 26.02.2020, we observed at p.
18 of the typed judgment:
We have as well observed that the learned Judge arrived at that conclusion by
citing the decision of the High Court in Michael Kirobe Mwita (supra) which
relied on the decision of the Labour Court of South Africa in Almalgated
Beverages Industries (Pty) v. Jonker [1993] 14 ILJ 1232 (LAC). In our
considered opinion, it was not proper for the learned Judge to import and rely
on authorities from other Jurisdictions, while the Interpretation Act is expressly,
elaborate and clear on that aspect.”
Guided by the standpoint we took in National Microfinance Bank v. Victor
Modest Banda (supra), we are firm that the High Court ought not to have
resorted to the position in South Africa while our local legislation are self-
sufficient.
We also agree with Mr. Kamala that the words "in addition to" used in section
40 (2) of the ELRA did not mean to refer to awarding compensation in
455
addition to reinstatement, rather, it meant to refer to other entitlements of the
employee under a different legislation or agreement; such as severance pay and
payments agreed upon by the employer and employee. The subsection did not
mean to include remedies already specifically provided for as alternatives in
subsection (1). The subsection reads:
An order for compensation made under this section shall be
in addition to, and not a substitute for, any other amount to
which the employee may be entitled in terms of any law or
agreement.
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) of the same section, it is provided that if the
employer does not wish to reinstate or re-engage, then compensation should be
paid. We thus agree with Mr. Kamala that by ordering reinstatement and
compensation of twelve months' salaries conjunctively, the High Court fell
into an error. It should have ordered disjunctively as the CMA did. The third
ground of appeal succeeds partly; to the extent stated.
In the final analysis, we allow the appeal of the appellant bank to the extent
stated. In consequence whereof, we set, aside the order and-decree of the High
Court granting the reliefs conjunctively. In substitution therefore, we order the
appellant bank either to re-engage the respondents in their employment in terms
of section 40 (1) (a) of the ELRA or, if she does not want to do so, to pay each
respondent twelve months' salaries as dictated by section 40 (3) of the same Act.
This being a labour-related matter, we make no order as to costs.
NATIONAL MICROFINANCE BANK v. VICTOR MODEST

BANDA
AT TANGA
456
(MZIRAY, MWAMBEGELE, and KEREFU, JJ.A.)
(Appeal from the Judgment and Decree of the High Court of Tanzania Labour
Division, at Tanga, Mipawa, J., dated 16th June, 2017 in Revision No. 16 of
2015)
Interpretation - business in which the respondents were engaged requires
unqualified good faith and honesty, integrity, trust and confidence - Respondents
in a bank terminated for lack of good faith 'as well as gross negligence and
misconduct - Court orders respondents’ reinstatement – Whether Rule 12 of the
Code of Good Practice GN No. 42 of 2007 was properly interpreted by the court.
Interpretation – grant of reliefs of reinstatement and compensation - Labour
Court granted the reliefs sought by the respondents conjunctively instead of
granting them disjunctively – Whether the High Court properly interpreted the
provisions of section 40 (1) (c) of the ELRA.
The respondent was an employee of the appellant in the position of Bank Teller.
After termination of her employment, the respondent filed a complaint before
the CMA. The CMA determined the matter and ruled in favour of the
respondent. Aggrieved, the appellant unsuccessfully applied for revision of that
CMA's decision before the High Court of Tanzania, Labour Division, hence, this
appeal.
Held: i) It is common ground that the appellant under Rule 12 (1) (iv) (v) (2),
(3), (4) and (5) of the Code of Good Practice is required, among others to prove,
one, whether the mistakes done by the respondent amounted to serious
misconduct, two, whether the disciplinary procedures were complied with and
three, whether the sanction imposed against the respondent has been
consistently applied to other employees who committed the same mistakes.
ii) It is a cardinal principle of statutory interpretation that words used in the
section must be given their ordinary grammatical meaning. Since it is clear that
the word used under section 40 (1) (a) (b) and (c) ELRA is "OR" then it was
improper for the learned Judge to award the two reliefs conjunctively.
(iii) It is also important to note that the compensation envisaged under section
40 (1) (c) is qualified and explained in section 40(2) of the same Act. This means
that the order of compensation made under section 40 (1) (c) shall not be in
457
substitution of any other entitlements which are available to an employee who
is terminated and may be entitled in terms of any law or agreement.

Cases referred to
(1) Elia Kasalile and 20 Others v. The Institute of Social Work, Civil
(2) Katani A. Katani v. The Returning Officer, Tandahimba District
and 2 Others, Civil Appeal No. 115 of 2011
(3) Africa in Almalgated Beverage Industries (Pty) v. Jacker [1993]
14 ILJ 12 33 (LAC)
(1) Rule 12 (1) (iv) (v) (2), (3), (4) and (5) of the Code of Good
Practice
(2) Section 40(1) of the Employment and Labour Relation Act,
Cap. 336
(3) Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules,
2009
Mr. Kamala, for Appellant

Messrs. Rwegasira and Nkingwa, for Respondent

KEREFU, J.A.: In April, 2013, the respondent, Victor Modest Banda who was
the former employee of the appellant at the position of Bank Teller lodged an
employment dispute against the appellant, his employer before the Commission
for Mediation and Arbitration (the CMA), alleging unfair termination from his
employment. The CMA determined the matter and ruled in favour of the
respondent by ordering the appellant to reinstate him OR in the alternative, pay
him compensation at the tune of Tshs. 24,000,000/=. Aggrieved, the appellant
unsuccessfully applied for revision of that CMA's decision before the High
Court of Tanzania, Labour Division at Tanga (Mipawa, J.) in Revision No. 16
458
of 2015. The High Court varied the decision of the CMA by ordering the
appellant to reinstate the respondent AND pay him compensation of twelve (12)
months' salaries. Believing that the two courts below were wrong in issuing
those orders, the appellant has appealed to this Court on the following three
grounds:
1. The High Court, (Labour Division) erred in law by

taking consideration of matters that were not in dispute
for determination;
2. The High Court, (Labour Division) erred in law for
improper interpretation of Rule 12 (with all subsections
thereto) of the Code of Good Practice GN No. 42 of
2007; and
3. The High Court, (Labour Division) erred in law by
holding that the respondent should be reinstated and be
paid compensation instead of one option of reliefs under
section 40(1) of the Employment and Labour Relation
Act, Cap. 336.
Before dealing with the merits of the appeal, we find it necessary to set out the
facts of the case as obtained from the record of appeal. That, on 28th December,
2010 the respondent was employed by the appellant at the position of a Bank
Teller at one of the appellant's branch located in Tanga Region styled 'NMB
Mkwakwani' until 16th February, 2013 when his employment was terminated.
The reason for the termination was gross negligence by suppression of deposits
in the customer's account. It was alleged that the respondent failed to deposit an
amount of Tshs. 150,000/ in the client's account No. 42301100006 belonging
to the Tanzania Revenue Authority (TRA) and instead he deposited Tshs.
10,000/ only. The mistake was revealed by the client when making
reconciliation. The matter was reported to the branch manager, who demanded
the respondent to refund the suppressed amount at his own costs, which he did
and confessed that what happened was only a human error which was done
unintentionally and without any ill motive. However, he was later charged and
brought before the appellant's disciplinary committee, where his employment
was terminated. Being unhappy with the action taken against him, the
respondent instituted a labour dispute as indicated above.
459
When the appeal was placed before us for hearing, both parties were
represented. Mr. Pascal Kamala, learned counsel entered appearance for the
appellant, whereas Mr. Switbert Rwegasira assisted by Mr. Mathias Nkingwa,
both learned counsel represented the respondent. The said learned counsel 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)
as amended by GN No. 344 of 2019 which they sought to adopt at the hearing
to form part of their oral submissions.
Having carefully considered the parties' written and oral submissions together
with the grounds of appeal in the light of the record of appeal, we should now
be in a position to confront the grounds of appeal in the same manner as
presented to us by the counsel for the parties.
Starting with the first ground, we do not think that this ground needs to detain
us much as we find the claim by Mr. Kamala not to be supported by the record
of appeal. We shall demonstrate. At page 153 of the record of appeal, the issues
framed by the CMA to determine the dispute between the parties were:
1. Whether there was reason for terminating employment of
complainant and its legality;
2. Whether such termination followed fair procedures; and
3. Reliefs sought by each party.
From the above extracted framed issues, it is clear that the dispute between the
parties centered on the issue whether the termination of the respondent's
employment was unfair. It is therefore obvious that, the CMA and the High
Court could not have managed to solve the first and second issues above without
determining as to whether the sanction of termination imposed against the
respondent was fair in terms of the Code of Good Practice. To justify our
observation, we have closely scrutinized the entire record and noted that the
said issue is featuring in (i) the CMA Form No. 1 used by the respondent to
institute the dispute found at pages 288 to 296, (ii) the CMA proceedings (pages
155 to 198), (iii) the appellant's closing submissions before the CMA (pages
199 to 206) and (iv) the CMA Judgement and the CMA award (pages 95 to
120). We are therefore in agreement with Mr. Rwegasira that the claim by Mr.
Kamala that the said issue was new is unfounded. We equally find no merit in
the first ground of appeal.
460
As for the second ground of appeal, we have noted that Mr. Kamala is
faulting the learned Judge for giving an improper interpretation of Rule 12 of
the Code of Good Practice. In principle the said Rule, among others provides
guidance on how an allegation on unfair termination could be handled. The said
Rule provides that:
12 (1) Any employer, arbitrator or judge who is required
to decide as to termination for misconduct is unfair shall
consider:
(a) Whether or not the employee contravened a
rule or standard regulating conduct relating to employment;
(b) If the rule or standard was contravened whether or not:-
(i) It is reasonable;
(ii) It is clear and unambiguous;
(iii) The employee was aware of it, or could reasonably
be expected to have been aware of it;
(iv) It has been consistently applied by the employer; and
(v) Termination is an appropriate sanction for contravening it.
(2) First offence of an employee shall not justify termination
unless it is proved that the misconduct is so serious that it
makes a continued employment relationship intolerable;
(3) The acts which may justify termination are:-
(a) Gross dishonesty;
(b) Willful damage to property;
(c) Willful endangering the safety of others;
(d) Gross negligence
(e) Assault on a co -employee, supplier, customer or a
member of the family of, any person associated with the
employer; and
(4) In determining whether or not the termination is the
appropriate sanction, the employer should consider -
(a) The seriousness of the misconduct in the light of the nature
of the job and the circumstances in which it occurred, health
and safety, and the likelihood of repetition; or
(b) The circumstances of the employee such as the employee's
employment record, length of service, previous disciplinary
record and personal circumstances.
461
(5)The employer shall apply the sanction of termination
consistently with the way in which it has been applied to the
same and other employees in the past, and consistently as
between two or more employees who commit same
misconduct.
Our reading of all the above sub-sections in Rule 12 in relation to the

interpretation given by the learned Judge at pages 19 - 24 of the record of appeal
leaves us with no doubt that the learned Judge correctly interpreted the above
Rule and applied the same properly in the circumstances of this matter. As we
have intimated above, the main controversy between the parties was on unfair
termination of the respondent's employment. In determining that issue, the
learned Judge examined the circumstances of the case against the guidance
provided under the above Rule. (See the Labour Court's judgement from pages
19 - 24 of the record of appeal).
It is common ground that the appellant under Rule 12 (1) (iv) (v) (2), (3),
(4) and (5) of the Code of Good Practice was required, among others to prove,
one, whether the mistakes done by the respondent amounted to serious
misconduct, two, whether the disciplinary procedures were complied with and
three, whether the sanction imposed against the respondent has been
consistently applied to other employees who committed the same mistakes.
In addition, under section 39 of the ELRA, the employer owes a burden of proof
on whether the termination of the respondent's employment was fairly done.
The said section provides that: "In any proceedings concerning unfair
termination of an employee by an employer, the employer shall prove that the
termination is fair." See also our decision in Elia Kasalile and 20 Others v. The
Institute of Social Work, Civil Appeal No. 145 of 2016 (unreported) at page 29
where the issue of unfair termination was also discussed.
It is on record and as eloquently argued by Mr. Rwegasira that, in the case at
hand, the appellant has completely failed to prove the above issues. We have
scrutinized the evidence adduced by the parties before the CMA and observed
that, the appellant summoned two witnesses namely, Prudence Bimily, the fraud
officer (DW1) and Tumaini Dincon, the HR Coordinator (DW2). DW1 at pages
158 -159 testified to the effect that the mistakes done by the respondent are
normal mistakes in the banking industry and were previously committed by
other employees and the same disciplinary measure was not applied. In
462
addition, DW2 at pages 185 - 187 testified that the disciplinary committee
which heard and determined the respondent's case is not recognized in the
appellant's disciplinary policy or the Human Resource Policy that the
appellant's disciplinary procedures were not complied with. It is also on record
that the appellant has as well failed to prove previous disciplinary conducts on
the part of the respondent. After considering all evidence adduced and tendered
by the appellant before the CMA the learned Judge correctly observed at page
31 of the record of appeal that:
There were no aggravating factors on part of the respondent
and the employer did not adduce evidence to prove on
balance of probabilities that there was willfulness on the
part of the respondent, lack of remorse, previous warnings
or long record of infringements...Terminating the
employment of the respondent in the circumstances...was too
harsh and severe penalty, a warning to the respondent could
have been fair to both sides. It was therefore unfair for the
employer to terminate the respondent...he had no valid
reasons, so to speak. [Emphasis added].
In the circumstances, we are satisfied that the interpretation of Rule 12 of the
Code of Good Practice given by the learned Judge is correct and cannot be
faulted. We are in agreement with both, the CMA and the High Court findings
that the respondent's termination was vitiated as the procedure was not followed
and the appellant had since failed to prove his allegations. As such, we also find
the second ground of appeal to have no merit.
In relation to the third ground of appeal the main complaint is that the two reliefs
of 'reinstatement' AND 'compensation' awarded by the High Court goes
contrary to the spirit of section 40 (1) of the ELRA. Mr. Kamala cited section
13 of the Interpretation Act and argued that the law requires the said reliefs to
be awarded disjunctively and not conjunctively. Mr. Rwegasira supported the
award given and argued that section 40 (1) of the ELR Act was properly
interpreted. He also cited sections 40 (2) and (3) of the same Act and argued
that, in terms of those sections compensation is given in addition to what the
employee is entitled in other laws or agreement.
We wish to note that the process of awarding the said reliefs is governed by
Section 40 (1) of the ELRA which provides that:
463
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
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 of not less than
twelve months' remuneration. [Emphasis supplied].
It is clear that the word used in the above sub-sections is 'OR' and pursuant to
section 13 of the Interpretation Act cited to us by Mr. Kamala the use of that
word means 'disjunctively.' For the sake of clarity section 13 provides that:
In relation to a written law passed or made after the commencement of 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 of like meaning is added.
It is on record that in awarding the said reliefs the learned Judge awarded them
conjunctively i.e., 'reinstatement AND compensation' (See the decision of the
High Court found at page 39 of the record of appeal). It is our considered
opinion that this is contrary to the dictates of section 40 (1) of the ELRA. It is
a cardinal principle of statutory interpretation that words used in the section
must be given their ordinary grammatical meaning. See Katani A. Katani v. The
Returning Officer, Tandahimba District and 2 Others, Civil Appeal No. 115 of
2011 (Unreported). Since, it is clear 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. It is also important to note that the compensation
envisaged under section 40 (1) (c) is qualified and explained in section 40(2) of
the same Act that, ''.An order for compensation made under this section shall
be in addition to, and not a substitute for, any other amount to which the
employee may be entitled in terms of any law or agreement. "This means that
the order of compensation made under section 40 (1) (c) shall not be in
substitution of any other entitlements which are available to an employee who
is terminated and may be entitled in terms of any law or agreement.
464
We have as well observed that the learned Judge arrived at that conclusion by
citing the decision of the High Court in Michael Kirobe Mwita (supra) which
relied on the decision of the Labour Court of South Africa in Almalgated
Beverage Industries (Pty) v. Jacker [1993] 14 ILJ 12 33 (LAC). In our
considered opinion, it was not proper for the learned Judge to import and rely
on authorities from other jurisdictions, while the law of Interpretation Act is
expressly, elaborate and clear on that aspect. We are thus in agreement with Mr.
Kamala on this point.
It is therefore our considered view that the learned Judge misconstrued section
40 (1) of the ELRA and we find the authorities he cited and relied upon to be
inapplicable in the circumstances of this case. We thus find the third ground of
appeal to have merit.
In the final analysis, we allow the appeal to the extent explained above. We
accordingly quash and set aside the decision of the High Court and uphold the
decision of the CMA pronounced on 8th July 2014. Since this is a labour matter
we make no order as to costs.
NORTH MARA GOLD MINE LIMITED v. ISAAC SULTAN

AT MUSOMA
(Appeal from the Judgment and Decree of the High Court of
Tanzania, Labour Division, at Musoma, Galeba, J., dated 26th July,
2019 in Consolidated Labour Revisions No. 16 & 17 of 2018)
Record of court proceedings – arbitrator did not append his signature after
each witness had finished testifying – whether the omission to append his
signature was fatal to the proceedings
465
designed his own style of authentication of proceedings by having all parties
and their advocates sign on the coram, and later by calling upon the advocates,
to sign again at the end of the testimony of each witness – whether proceedings
were a nullity - Rule 19 (1) of the Rules
Compensation – respondent awarded compensation beyond the minimum
statutory rate - whether the judge applied the right principle in awarding the
compensation of 90 months' salary and whether it was correct for him to do so
by considering matters that were not earlier raised resulting into condemning
the appellant unheard.
The respondent was employed by the appellant in the position of Environmental

Coordinator. Later the respondent's employment was terminated following
charges of dishonesty and breach of code of conduct following a conviction by
a Disciplinary Hearing. Dissatisfied with the decision, he referred the matter to
the Commission of Mediation and Arbitration. The CMA decided in favour of
the respondent. The appellant referred the matter to the High Court which also
decided in favour of the respondent, hence, this appeal.
Held: i) It is a principle that court proceedings, which in this case includes

CMA proceedings, are always presumed as representing the truth of what
transpired.
ii) We are fully satisfied that the absence of the Arbitrator's signature at the end
of the testimony of each witness in this case, did not vitiate the proceedings nor
prejudice any party because, if anything, any possible suspicion on the
authenticity of those proceedings, was cleared by the parties' advocates signing.
The Arbitrator design of his own way of authenticating the evidence, which is
within his powers to do in terms of rule 19(1) of the Rules, cannot vitiate the
proceedings nor prejudice any party because, if anything, any possible suspicion
on the authenticity of those proceedings, can cleared by the parties' advocates
signing.
iii) Right to be heard is so basic that a decision which is arrived at in violation
of it will be nullified even if the same decision would have been reached had
the party been heard because the violation is considered to be a breach of natural
Justice.
466
Cases referred to
(1) Iringa International School v. Elizabeth Post, Civil Appeal No.
155 of 2019
(2) Joseph Elisha vs. Tanzania Postal Bank, Civil Appeal No. 157
of 2019
(3) Halfan Sudi v. Abieza Chichili [1998) T.L.R 527 at page 529:
(4) Finca Tanzania Ltd v. Wildman Masika and 11 Others, Civil
(5) Unilever Tea Tanzania Ltd v. Davis Paul Chacha, Civil Appeal
No. 290 of 2019
(6) Truck Freight (T) Limited v. CRDB Bank Limited, Civil Application No.
157 of 2007
(7) Sugar Board of Tanzania v. Ayubu Nyimbi & 2 Others, Civil
(8) Charles Christopher Humphrey Kombe v. Kinondoni Municipal
Council, Civil Appeal No. 81 of 2017
(9) Yazidi Kassim Mbakileki v. CRDB (1996) Ltd and Another, Civil
Reference No. 14/04 of 2018
(10) Abbas Sherally & Another v. Abdul S. H. M. Fazalboy, Civil
(1) Rule 19 (1) of the Tanzania Court of Appeal Rules, 2009

Mr. Majogoro, for Respondent

Dated 16th December, 2021
467
KITUSI, J.A.: The respondent was employed by the appellant in the position of
Environmental Coordinator from March, 2013 to July, 2017, when the two fell
out. The respondent was also the Branch Chairman of a trade union known as
National Union for Mines and Energy Workers Tanzania (NUMET). On
26/7/2017 the respondent's employment was terminated following charges of
dishonesty and breach of code of conduct, and a Disciplinary Hearing (DH) that
convicted him. He was dissatisfied with the decision, so he referred the matter
to the Commission of Mediation and Arbitration (CMA), raising two issues
namely:
(i) Whether the reason for termination was valid
(ii) Whether the appellant followed the requisite procedure in
terminating the respondent’s employment.
There is no dispute that on 6/11/2016 the respondent issued a memo (exhibit D

12) and signed it as Chairman of NUMET- North Mara Gold Mine Ltd, with
the following contents:
AGIZO KWA WAFANYAKAZI
KUFUATIA MAMLAKA YA CHAKULA NA MADAWA
(TFDA) KUTOA KATAZO LA GHALA LA NYAMA NA
SAMAKI LA KAMPUN/ YA AKO MKOANI DAR ES
SALMM.
NUMET INAWAAGIZA WALAJI WOTE WAACHE
KULA WAKULA/BIDHAA ZA NYAMA NA SAMAKI
ZA AKO KUANZIA LEO TAREHE 06 NOVEMBER,
2016, MPAKA HAPO MTAKAPOTANGAZIWA NA
UONGOZI WA NUMET.
UONGOZI WA NUMET UNASIKITIKA KUONA
MWAJIRI AKIENDELEA KURUHUSU AKO
KUWALISHA WAFANYAKAZI BIDHAA ZA NYAMA
NA SAMAKI NA KUKAA KIMYA BILA HATA
KUJADILI Hill SUALA NA UONGOZI WA NUMET.
SHERIA IMEIPA NUMET MAMLAKA YA KUJADILI
MIKATABA INAYOATHIRI MASLAHI YA AFYA NA
UHAI WETU WAFANYAKAZI KWA UJUMLA
(WELFARE).
468
Signed
In the record of appeal, there is a translated version of that memo which,

although tentative, is to the following effect:
FOLLOWING THE FOOD AND DRUG AUTHORITY (TFDA)
PROHIBITIONS TOWARDS AKO WAREHOUSE OF MEAT AND
FISH IN DAR ES SALAAM NUMET IS INSTRUCTING ALL
CONSUMERS TO STOP EATING FOOD ESPECIALY MEAT AND
FISH OF AKO FROM TODAY ON 06 NOVEMBER, 2016 UNTIL
FURTHER NOTICE FROM THE LEADERSHIP OF NUMET.
LEADERSHIP OF NUMET IS SURPRISED TO SEE THE
EMPLOYER IS STILL ALLOWING AKO TO FEED STAFF
PRODUCTS SUCH AS MEAT AND FISH AND REMAINING
SILENT WITHOUT DISCUSSING THIS MATTER WITH THE
LEADERSHIP OF NUMET.
THE LAW HAS ALLOWED NUMET TO DISCUSS ALL THE
CONTRACTS WHICH ARE AFFECTING THE HEALTH AND
LIFE OF THE EMPLOYEES (WELFARE) IN GENERAL.
Signed
The allegations against the respondent revolved around the provision of catering
services to the appellant's employees and the involvement of AKO Catering
Services Company, so the memo reproduced above is relevant in setting the
background.
Back to the issues that were proposed for CMA's determination. In proof of the
reason for termination and whether it was valid, the appellant adduced evidence
that the respondent was meddling with the appellant's choice of AKO as the
service provider at the company, and that he had received bribes to cause AKO's
downfall. The charges against the respondent alleged that he had received Tshs.
20 million from one George King and Tshs. 10 million from Mwita Bhoke, both
469
of Nice Catering, who wanted him to instigate unrest in AKO, cause its removal,
so that their Company known as Nice Catering Services could take over the
contract of supplying food at North Mara Gold Mine Limited.
Meiseyeki Msangi (DW3), an investigator, testified that George King and Mwita
Bhoke, employees of Nice Catering, informed him that they had given the
respondent the money in order to win the tender of catering at the company. He
said he tracked the meetings of the two with the respondent on 4/12/2016,
9/12/2016 and 19/12/2016. DW3 further said that following their meeting on
4/12/2016 the respondent issued the memo on 6/12/2016 for workers to stop
eating AKO’s food.
The witnesses for the appellant referred to recorded movements of the
respondent and meetings he held with George King and Mwita Bhoke as
suggesting truth in the charges of corruption.
The respondent denied those allegations but admitted issuing the memo after
ITV Television station broadcast a surprise inspection of AKO's food stores in
Dar es Salaam showing that fish and pork, was unfit for consumption. He held
a meeting with workers' representatives at NUMET and resolved that they
should issue the memo to avoid possible adverse effects on the workers.
He said that despite giving that account at the Disciplinary Hearing, he was
found guilty of receiving bribes from George King and Mwita Bhoke. He
lodged an appeal specifically demanding attendance of George King and Mwita
Bhoke to substantiate their allegations against him, but the appeal was
determined without hearing their version of the allegations, confirming the
findings of the Disciplinary Hearing. He said that the appellant failed to prove
the allegations of bribery therefore the reason for termination was not valid. He
also said that the procedure was not followed because the appeal was
determined pre-maturely without hearing George King and Mwita Bhoke.
The CMA concluded that the appellant failed to prove validity of the reason for
the termination but followed the laid down procedure. It awarded the respondent
compensation equivalent to gross salaries for 48 months. The award was
challenged to the High Court by both parties. The appellant argued that as the
termination was for fair and valid reasons, the respondent was not entitled to
any relief. On the other hand, the respondent challenged the CMA award as
inadequate, arguing that he was entitled to payment of an amount equal to gross
salaries for 96 months as pleaded.
470
The learned High Court judge who sat on revision concluded that the allegations
of corruption and bribery had not been proved mainly because the key witnesses
to prove that did not testify even when the respondent requested. He also held
that there was no connection between the respondent's alleged receipt of the
money and the anticipated award of tender of catering to Nice Catering
Company.
The learned judge proceeded to dismiss the revision by the appellant for want
of merit and partly allowed that of the respondent by enhancing the award from
48 months equivalent of salaries to 90 months equivalent of salaries. This
decision is the subject of this appeal.
Initially the appellant challenged the decision of the High Court on 9 grounds,
however in the written submissions filed on 11/1/2021, it abandoned all except
grounds 3, 4, 8 and 9. These grounds are as follows:
3. The learned High Court Judge erred in fact and in law in
raising and determining the issue of procedural illegality in
the hearing of the Respondent's appeal to the chairperson
which issue was not raised in Revision Applications.
4. The learned High Court Judge erred in law and in fact in
determining the issue of the respondent's reputation which
was not raised and determined at the CMA.
increasing the compensation awarded to the respondent to
90 months which is excessive.
increasing the compensation awarded to respondent on basis
that the respondent's reputation was tarnished/damaged.
In addition, the appellant intimated that in those four grounds, the submissions
would only be on points of law, not of facts. The appellant then prayed for leave
to add two grounds, one in the course of making written submissions, which is:
The Honourable High Court Judge erred in law in holding that the CMA applied
the right principle in awarding the compensation.
Leave for the second additional ground of appeal was prayed for at the hearing
of the appeal, during which Mr. Faustin Anton Malango and Ms. Caroline Lucas
471
Kivuyo, both learned advocates, appeared for the appellant. The respondent was
represented by Mr. Alhaji Abubakari Majogoro, also learned advocate.
Mr. Malango was granted leave to add and argue the second additional ground
of appeal which is:
The Honourable court erred in law in upholding the CMA
award which arose from proceedings which were a nullity for
want of Arbitrator's signature at the end of testimony of every
witness.
By its very nature, this ground had the potential of disposing of the appeal,
therefore it was argued ahead of the other grounds. It was Ms. Kivuyo who
argued it.
Our deliberations shall begin by appreciating the principle that every case is
decided upon its own peculiar facts, which we think, is a sine qua non to
deciding matters on the basis of the truth on the ground. The Labour Institutions
(Mediation and Arbitration Guidelines) Rules, 2007, GN No. 67 of 2007 (the
Rules) have a specific provision to that effect which stipulates:
2 (1) These Rules aim to guide mediators and Arbitrators
appointed by the Commission in the exercise of their powers
and functions and assist parties to resolve disputes provided
that every mediation and arbitration shall be considered
on its own merit.
We are aware of the principle that court proceedings, which in this case includes
CMA proceedings, are always presumed as representing the truth of what
transpired, as rightly submitted by Mr. Majogoro.
With that preface in mind, we are going to have to decide whether the CMA's
proceedings in this case were a nullity for the reason that the Arbitrator did not
append his signature at the end of testimony of each witness.
In the instant case, it is relevant to point out that there appear to be signatures
appended on the coram before commencement of proceedings of each day, and
signatures at the end of the testimony of each witness. Admittedly that fact is
not reflected in the typed version of the proceedings, so it is understandable that
counsel who had no access to the original record, was unaware of it.
472
For instance, on 6/10/2017 before Haruna Soleka - Arbitrator, evidence of
Emmanuel Kipingu was recorded in the presence of the following, who signed
against their names:
(1) Godfrey Kange-Advocate for the respondent
(2) Emmanuel Kipingu - HR Officer
(3) Isaac Sultan - Complainant
(4) Alhajl A. Majogoro -Advocate for Complainant.
It is to be noted that the names on the coram were written by the attendees in
their own respective hand writings. At the end of the examination in chief which
was recorded in a form of questions and answers, the advocates for the parties
signed again.
This was the same procedure followed on the subsequent dates when the matter
proceeded before the CMA. Certainly, this procedure is not anywhere close to
what the CPC provides under 0. XVIII rule 5 cited in the case of Iringa
International School v. Elizabeth Post, Civil Appeal No. 155 of 2019, Mr.
Malongo insisted in his rejoinder submission, that what the above provision
requires is the signature of the presiding Arbitrator, not of the advocates.
Mr. Malongo may be correct because we have recently held so in the case of
Joseph Elisha vs. Tanzania Postal Bank, Civil Appeal No. 157 of 2019
(unreported) by stating that:
Though the Rules governing the proceedings at the CMA do
not contain any provision regarding signing of the witness's
testimony by the Arbitrator, it is our view that the
requirement is imperative to safeguard the authenticity and
correctness of the record.
The question that still lingers, is whether the above position would still apply
even when, as in this case, the Arbitrator has designed his own style of
authentication of proceedings, by having all parties and their advocates sign on
the coram, and later by calling upon the advocates, to sign again at the end of
the testimony of each witness.
We take this question to be important for two reasons. One, as Mr. Majogoro
reminded us, a court record is presumed to represent the truth of what happened.
The Court stated so in Halfan Sudi v. Abieza Chichili [1998) T.L.R 527 at page
529:
473
We entirely agree with our learned brother, MNZAVA, JA,
and the authorities he relied on which are loud and clear that
''A Court record is a serious document. It should not be
lightly impeached ... There is always the presumption that a
court record accurately represents what happened.
Two, an Arbitrator has the power to determine how the arbitration should be
conducted, as provided under rule 19 (1) of the Rules. In Finca Tanzania Ltd v.
Wildman Masika and 11 Others, Civil Appeal No. 173 of 2016 (unreported),
the Court stated the following after reproducing the whole of Rule 19 of the
Rules:
It is apparent from the quoted provisions that the Arbitrator
has the power to regulate and determine the practice and
procedure of how the arbitration should be conducted,
including, in our view, how to handle the document tendered
by parties during arbitration. There is nothing in the
Mediation and Arbitration Guidelines Rules which calls for
the strict application of Order XIII Rule 4 (1) of the CPC in
the Arbitration proceedings before the CMA.
Our conclusion on this ground is that this case is distinguishable from the case
of Iringa International School (supra); Unilever Tea Tanzania Ltd v. Davis Paul
Chacha, Civil Appeal No. 290 of 2019 and; Joseph Elisha v. Tanzania Postal
Bank (supra), because in this case the Arbitrator designed his own way of
authenticating the evidence, which is within his powers to do in terms of rule
19(1) of the Rules. We are fully satisfied that the absence of the Arbitrator's
signature at the end of the testimony of each witness in this case, did not vitiate
the proceedings nor prejudice any party because, if anything, any possible
suspicion on the authenticity of those proceedings, was cleared by the parties'
advocates signing. Therefore, the additional ground that was argued orally at
the commencement of the hearing, has no merit and we dismiss it.
The other additional ground of appeal is, in our view, linked with grounds 3, 4,
8 and 9 which the counsel for the appellant invited us to consider. The additional
ground raises the issue; whether the learned judge was correct in concluding
that the CMA applied the right principle in awarding the compensation.
Grounds 3, 4, 8 and 9 raise the issues whether the learned judge applied the
right principle in awarding the compensation of 90 months' salary and whether
it was correct for him to do so by considering matters that were not earlier
474
raised. Therefore, the connection between that additional ground and grounds
3, 4, 8 and 9 is apparent.
In arguing these grounds, Mr. Malango adopted the written submissions and
asked us to ignore those parts that attack findings of facts because such matters
may not be raised before the Court.
In ground 3 it was alleged that the learned judge raised the issue of illegality in
the appeal proceedings before the Disciplinary Hearing and determined it
without giving the parties a hearing. It was argued that it was wrong for the
learned judge to do so and that error vitiates the decision. In support of this
position, the case of Truck Freight (T) Limited v. CRDB Bank Limited, Civil
Application No. 157 of 2007 (unreported), was cited.
In respect of grounds 4 and 9 which were combined, counsel for the appellant
argued that the learned judge raised the issue of the respondent's reputation suo
mottu and wrongly decided it in increasing the compensation while it was an
issue of tort, which had not been raised and canvassed earlier.
In ground 8, the learned judge's conclusion increasing the compensation from
48 months to 90 months, is challenged for being based on wrong principles.
On the other hand, Mr. Majogoro who also adopted the written submissions,
argued that the issue of the illegality at the Disciplinary Hearing was not new
and that the High Court sitting on first appeal had the mandate to review the
evidence. The case of Sugar Board of Tanzania v. Ayubu Nyimbi & 2 Others,
Civil Appeal No. 53 of 2013 (unreported) was cited by the learned counsel to
support the submissions. The learned counsel sought to distinguish this case
from the case of Truck Freight (T) Limited (supra) on the ground that in the case
the learned judge did not, on appeal, raise the issue suo mottu, but was
reassessing the evidence on record.
We have decided to consider grounds 3, 4 and 9 and leave out ground 8. We
think the common issue in these grounds, is whether or not the parties were
given a hearing on issues that appear to the appellant to have been new. We are
going to be straight about it that, with respect, the learned judge imported into
the appeal, facts that had not been alluded to earlier, therefore those were new
facts. For instance, at pages 324 - 325 of the record of appeal, he stated:
In this matter it is not only illegal but also shameful for a
world class company large as North Mara Gold Mine Limited
475
to terminate an employee on allegations for instance of
theft while there was nothing stolen from the company or for
fraud without anything that the company was defrauded by
the applicant The acts of the respondent in this case did
not only therefore negatively impact on the reputation of
the applicant as an innocent person but also on the
character and integrity of the respondent itself. (emphasis
ours).
These were new facts, in our firm view, and the parties did not have an
opportunity to address them. We also hold the view that the above observations
informed the learned judge’s decision on the compensation. This is because
after the above observations, he stated:
Now was the amount of compensation awarded
commensurate to all the odds that the applicant was thrown
into, all for the faults which were not his.
In view of the above, Mr. Majogoro’s argument that the discussion
on the new points did not affect the assessment of the compensation, cannot be
correct. It is clear from the above quoted statement, that the judge was
proceeding to assess the compensation with the respondent's predicaments in
mind. The predicaments included the loss of reputation which the learned judge
ruled had been suffered by the respondent.
With respect, it is also not in line with the settled law to argue, as Mr. Majogoro
did, that even if the parties had been heard, the result would have been the same.
This position is clear in our many decisions, including the cases of Charles
Christopher Humphrey Kombe v. Kinondoni Municipal Council, Civil Appeal
No. 81 of 2017 and Yazidi Kassim Mbakileki v. CRDB (1996) Ltd and Another,
Civil Reference No. 14/04 of 2018 (both unreported). The latter case quoted the
oft - quoted paragraph from Abbas Sherally & Another v. Abdul S. H. M.
Fazalboy, Civil Application No. 33 of 2002 (unreported) in which it was
observed that:
The right to be heard before adverse action or decision is
taken against such a party has been stated and emphasized by
courts in numerous decisions. That right is so basic that a
decision which is arrived at in violation of it will be nullified
even if the same decision would have been reached had the
476
party been heard because the violation is considered to be a
breach of natural Justice.
On the basis of the above settled position of the law, and having found that the
learned High Court judge raised and determined two issues without hearing the
parties, we find merit in grounds 3, 4 and 9 of appeal and allow the appeal to that
extent. We nullify the revisional proceedings of the High Court, quash the
judgment and set aside the resultant order of compensation, for having been
reached without giving the parties the right to be heard. We order that the
Consolidated Labour Revisions No 16 and 17 of 2018 be heard de novo, as soon
as possible. No order as to costs.
NORTH MARA GOLD MINE LIMITED v. JOSEPH WEROMA

DOMINIC
AT MUSOMA
(Appeal from the Judgment and Decree of the High Court of Tanzania, at
Musoma, Kahyoza, J., dated 3rd June, 2020 in Civil Case No. 4 of 2019)
Tort – malicious prosecution – ingredients to be proved thereto.

The respondent, was employed as an underground miner by a subcontractor
company that provided underground mining services at the appellant's, North
Mara Gold Mine Limited premises at Nyamongo. The respondent was alleged
by the appellant to have been involved in the theft of gold. Consequent to the
allegation, the respondent was arrested by the police and prosecuted at the
477
District Court of Tarime together with his fellow employees. The respondent
was found with no case to answer and was thus acquitted by the District Court.
In the circumstances, as alluded the respondent instituted Civil Case against the
appellant on maliciously prosecuted before the High Court. The High Court
decided in favour of the respondent. Dissatisfied with the decision of the High
Court, hence, this appeal.
Held: i) It is settled law that a party suing for malicious prosecution must prove
the following ingredients: that the proceedings were instituted or continued by
the defendant; that the defendant acted without reasonable and probable cause;
that the defendant acted maliciously; and that the proceedings terminated in the
plaintiff's favour.
ii) It is equally settled that each of the ingredients must be proved to entitle a
party to succeed in the suit for malicious prosecution.
Appeal allowed
Cases referred to
(1) Hosia Lalata v. Gibson Mwasote [1980] T.L.R. 154
(2) Yonah Ngassa v. Makoye Ngasa [2006] T.L.R. 123
(3) Mbowa v. East Mengo Administration [1972] EA 353
(1) Sections 110 and 111 of the Evidence Act, [Cap. 6 R.E. 2019]

Mr Majogoro, for Respondent
Dated 26th January, 2022
WAMBALI, J.A.: The respondent, Joseph Weroma Dominic was employed as

an underground miner by Byrnecut Offshore Tanzania Limited, a subcontractor
company that provided underground mining services at the appellant's, North
Mara Gold Mine Limited premises at Nyamongo. The circumstances which gave
rise to the respondent's decision of lodging Civil Case No. 4 of 2019 before the
478
High Court of Tanzania at Musoma was due to the alleged appellant's allegation
concerning his involvement in the theft of gold bearing materials weighing
eleven (11) kilograms valued at TZS. 26,700,000.00. Consequent to the
allegation, the respondent was arrested by the police and prosecuted at the
District Court of Tarime together with his fellow employees.
The respondent contended further that though he was not among the employees
on duty that day, that is, 23rd June, 2015, following his arrest and consequent
prosecution, his access card to the site was revoked by the appellant and
ultimately, his employment was terminated on 28th July, 2015 by his employer.
As it turned out, at the height of the prosecution case before the District Court of
Tarime, the respondent was found with no case to answer and was thus acquitted
in Criminal Case No. 336 of 2015. In the circumstances, as alluded to above the
respondent instituted Civil Case No. 4 of 2019 before the High Court (the trial
court) in which he claimed the following reliefs: TZS. 424,222,074.45 as special
damages; general damages to be assessed by the trial court; 12% interest on the
decretal sum from the date of the judgment to the date of full payment; costs and
any other relief the trial court would have deemed fit and just to grant.
The respondent's claims were strongly contested by the appellant through the
written statement of defence that was lodged at the trial court. It is noteworthy
that at the trial the following issues were framed: first, whether or not the
defendant (appellant) maliciously prosecuted the plaintiff (respondent); second,
whether the defendant acted without reasonable and probable cause; third,
whether the plaintiff suffered damages; and fourth, to what reliefs are the parties
entitled to.
The respondent's case was supported by himself as PW1 and one Jackson Gabriel
Musaroche, his fellow employee, as PW2. On the adversary side, the appellant
summoned Enock Alex Nguka (DW1) and Scholastica Kubonge (DW2).
At the end of the trial, after considering the evidence of both sides, the learned
trial judge decided in favour of the respondent. Particularly, he awarded the
respondent: TZS. 100,000,000.00 and TZS. 15,016,710 as general and special
damages respectively; 7% interest per annum from the date of judgment to the
date of full payment and costs of the suit.
It is thus against the judgment and decree of the trial court that the appellant has
approached the Court armed with a memorandum of appeal comprising ten
grounds of appeal reproduced hereunder:
479
1. That Trial Court erred in law and in fact in holding that the
Respondent was prosecuted by the Appellant in the
absence of evidence to that effect.
2. The Trial Court erred in law and in fact in holding that there
was no reasonable and probable cause for prosecuting
the Respondent.
3. The Trial Court erred in law and in fact in finding that there
was malice on part of the Appellant
4. The Trial Court erred in law and in fact in shifting the
burden of proof to the Appellant.
5. The Trial Court erred in law and in fact in determining the
fairness of the Respondent's termination of
employment.
6. The Trial Court erred in law and in fact in awarding specific
damages to the Respondent based on unfair termination of
employment.
7. The Trial Court erred in awarding excessive specific
damages which were not proved.
8. The Trial Court erred in law and in fact by finding that the
Respondent suffered damages for malicious prosecution
in absence of evidence to that effect
9. The Trial Court erred in law and in fact in awarding
excessive general damages amounting to Tshs.
100,000,000.00.
10. The Trial Court Judgment is not supported by
evidence adduced at the trial.
It is noteworthy that in concluding his determination on the issue of the

complainant who set in motion the prosecution of the respondent before the
District Court of Tarime, the learned High Court judge stated as follows:
It is trite law that for the purpose of tort of malicious prosecution,
a prosecutor is the one who is ''actively instrumental in putting
law in force...
The trial judge then quoted the holding from the decision of the High Court of
Tanzania in Hosia Lalata v. Gibson Mwasote [1980] T.L.R. 154 to cement his
observation on the issue of active involvement in the prosecution of the plaintiff
and stated that:
480
Applying the above position to the present case, it is clear that
the defendant could not act on matters concerning security of
her property unless through the company providing security.
Thus, for the purposes of malicious prosecution of the
defendant company, which was actively instrumental in
putting the law in force is construed as the prosecutor.
Furthermore, the defendant was a complainant in the Criminal
Case involving the plaintiff...
Having considered the evidence on record and the rival submission, I find that
the defendant prosecuted the plaintiff and the prosecution ended in favour of the
plaintiff... I agree with the plaintiff's advocate that there was no evidence to
establish that the police charged the plaintiff following their independent
investigation. That piece of evidence is hearsay. Had that been true the defendant
would have requested the police to give him the plaintiff's co-accused persons,
statement and produced it before the court. Not only that but also, the prosecution
did not call any witness or tender any exhibit to prove the plaintiff's involvement,
in the matter before District Court.”
We have critically reviewed the evidence in the record of appeal and considered
the rival submissions of the counsel for the parties in relation to the findings of
the trial court. Firstly, we have no doubt that the respondent was prosecuted and
that the prosecution ended in his favour. Secondly, the crucial issue is whether
it is the appellant who was actively instrumental in the respondent's prosecution
at the District Court of Tarime. It is important to emphasize that this being the
first essential element in a suit for malicious prosecution, it was the respondent's
duty to prove that he was prosecuted by the appellant. Indeed, in terms of
sections 110 and 111 of the Evidence Act, [Cap. 6 R.E. 2019] he who alleges the
existence of a fact has to prove it and that the burden of proof lies on a person
who would fail if no evidence were given at all.
According to the record of appeal, although during examination in chief the
respondent maintained that he was summoned and interrogated by the appellant's
security guards who later handed him to the police, during cross examination he
retreated and stated as follows:
It was a security guard who summoned me and handed me to
police. It was MOBILE SECURITY COMPANY's employee
who handed me to police. I do not know that the security
guards were employed by different company. A security guard
481
informed the police that I was in his office. Policemen came
and took me to police station. I was arrested by police.
On further cross examination the respondent (PW!) stated as follows:
I was arrested by police who were ordered by North Mara. I
saw the order in court, written by North Mara. It was not a
written notice. North Mara rang police to arrest me. North
Mara gave an order to police to arrest me. It was by phone. I
do not remember the date of the order. I do not know who
signed it.
It is noted that from the reproduced part of the respondent's testimony, there is
no firm indication that his arrest by the police was due to the direction of the
appellant. We also note that what the respondent stated during cross examination
was not stated in his evidence in chief.
On the other hand, according to the testimonies of PW2, DW1 and DW2, while
the arrest of the respondent's co-accused emanated from the search conducted by
the K. K. Security Company at the appellant's premises on 23rd June, 2015; the
respondent was arrested some two days later and charged at the direction of the
police. According to PW2, who testified in support of the respondent's case, he
was arrested by the security guards along with Majungu Masatu and Mabala on
23rd June, 2015 at the time of leaving the work place on suspicions of having
stolen Gold Bearing Materials (GBM), the property of the appellant. PW2 also
testified that the respondent was arrested on a later date on Friday by the police
and joined them at the police station. PW2 also affirmed that K. K. Security
which facilitated the respondent's arrest was an independent company like his
employer Byrnecut and that it was normal procedure to be searched at the time
of leaving underground.
The evidence of PW2 on the arrest and prosecution of the respondent by the
police is in tandem with the evidence of DW1 and DW2, both of whom were
employees of ASSEY RISK Company which had contracted the security
services to K. K. Security Company and remained with the issues concerning
administration and investigation of crimes and other violations at the appellant's
premises. Particularly, DW1 testified that:
…Other three suspects were arrested after we received
directions from the police that those should be arrested and
taken to police station. One among the names ordered to be
482
arrested was Mr. Joseph Weroma Dominic. Yes, the additional
suspects were found and police informed. Police arrested
them.
North Mara Gold Mine did not arrest and charge Joseph Weroma Dominic. It
was the policeman who arrested and charged. Joseph Dominic was arrested by
Police on the ground that his fellow employees were arrested suspected to have
stolen Gold Bearing Materials, mentioned him....
It was the police which interrogated Joseph Weroma Dominic and others and
decided to charge them. A Criminal Case was instituted by the police. Joseph
Dominic was not prosecuted by North Mara Gold Mine but by the police force
of Tanzania.
The police force prosecuted Joseph Dominic because his fellow employees who
were found with stolen GBM mentioned him. He was mentioned as a facilitator.
I got that information from the police, who told me that Dominic was mentioned
by his fellow employees.
We note from the record of appeal that the testimony of DW1 on this issue was
not seriously challenged by the respondent's counsel during cross examination.
Similarly, the evidence of DW2 also an employee of ASSEY RISK Company
affirmed that the respondent was arrested at the request of the Police and they
just facilitated by summoning him as per the direction. Specifically, DW2
testified as follows:
After two days, the manager told us that one person was
required by police. It was Dominic. We summoned him. He
was rung by Subulele as he was not at site. Yes, Dominic came
and we notified the police who came and arrested him. That
was the end of my involvement with the police. Dominic was
not employed by North Mara Gold Mine. He was employed
by Byrnecut Company. North Mara Gold Mine was not
involved in the arrest of Dominic. Dominic was mentioned by
the accused persons or suspects who were arrested by K. K.
Security. I do not remember if North Mara Gold Mine
instituted any case against Dominic, but I got information that
Subulele was summoned to testify.
During cross examination, DW2 testified that:
483
I got information through the control naming sheet. We were
informed by investigation manager. Police had no direct
communication with Dominic. We got his telephone number
from the three suspects who were arrested. We informed the
police that Dominic was at our office.
From the foregoing evaluation of the evidence of the parties with regard to the
issue of prosecution of the respondent, it is clear that though the GBM which
were suspected to have been stolen was the property of the appellant, there is no
direct evidence from the respondent side showing that the appellant or his
employee was actively instrumental in his arrest and prosecution. Moreover,
there is no evidence to show that it was the security company's guards who
reported to the police concerning the involvement of the appellant in the alleged
theft of GBM.
Indeed, though the learned trial judge in his judgment initially, in our
view, properly found that "the appellant could not act on matters concerning
security of her property unless through the company providing security", yet he
held that: "she was actively instrumental in putting the law in force and thus she
was construed as a prosecutor".
In this regard, we respectfully hold the firm view that, it was unfortunate for the
learned trial judge to have come to that findings by imposing the burden of proof
on the appellant to prove that she was not involved and that, she should therefore
have shown that it was the police who prosecuted the respondent through their
independent investigation. On the contrary, it is trite law that the burden of proof
lies on the person who alleges that he was prosecuted by the respective person.
Thus, it was the duty of the respondent to prove that it was the appellant who
was actively instrumental in prosecuting him at the District Court of Tarime in
order to be entitled to succeed in a suit of malicious prosecution.
It is further settled law as stated by the Court in Yonah Ngassa v. Makoye Ngasa
[2006] T.L.R. 123 where reference was made to a book by Salmond and Heuston
on the Law of Torts, 21st Edition at page 393 that a party suing for malicious
prosecution must prove the following ingredients:
1. That the proceedings were instituted or continued by the
defendant;
2. That the defendant acted without reasonable and probable
cause;
484
3. That the defendant acted maliciously; and
4. That the proceedings terminated in the plaintiff's favour.
It is equally settled that each of the above listed ingredients must be proved to
entitle a party to succeed in the suit for malicious prosecution.
In the present case, as we have sufficiently demonstrated above through the
evaluation of the parties evidence in the record of appeal with regard to the first
ingredient, there is no dispute that the respondent did not prove that the criminal
proceedings at the District Court of Tarime were instituted or instigated and
continued by the appellant as held by the trial court. Indeed, there is no evidence
from the respondent and his witness (PW2) that it is the appellant or her
employee who reported the incident of theft of GBM and directed the police to
arrest and prosecute him. It is in this regard that in Mbowa v. East Mengo
Administration [1972] EA 353 the defunct East Africa Court of Appeal stated
that:
The plaintiff in order to succeed all the four essentials or
requirement of malicious prosecution; as set out above, have
to be fulfilled and that he has suffered damage. In other words,
the four requirement must “unite” in order to create or
establish a cause of action. If the plaintiff does not prove them
he would fail in his action.
Consequently, in the light of what we have deliberated above with regard to the
first ground of appeal, we respectfully differ with the finding of the trial court
that the appellant was actively instrumental in putting the law in force in
prosecuting the respondent. Ultimately, we allow the first ground of appeal.
Admittedly, having found that the first element of proving a suit for malicious
prosecution was not proved by the respondent against the appellant, we think it
will be a futile exercise to embark on the deliberation and determination of the
rest of the grounds of appeal which concern the other elements of malicious
prosecution and the disputed reliefs granted by the trial court much as they are
essentially linked to the issue of who prosecuted the respondent.
It is our settled view that it was incumbent upon the respondent to first of all
prove that the appellant was actively instrumental in his prosecution before
embarking on proving the issue of absence of probable or reasonable cause,
presence of malice and entitlement to damages. This is notwithstanding the fact
485
that there is no dispute that the prosecution ended in the respondent's favour. In
the result, we allow the appeal with costs.
Appeal allowed
NORTH MARA GOLD MINE LIMITED v. KHALID ABDALLAH

SALUM
AT MUSOMA
Division at Musoma, Kisanya, J., dated 16th April, 2020 in Labour Revision
No. 25 of 2019)
Evidence – witness – failure by witness to take oath or affirm before testifying –

consequences thereto.
Procedural requirements – record of proceedings – arbitrator appends
signatures of witnesses and their advocates at the beginning of the proceedings-
whether proceedings are fatal.
The respondent was an employee of the appellant, as a General Operator until

his employment was terminated on ground of misconduct. Consequent to the
termination, the respondent approached the Commission for Mediation and
Arbitration (the CMA). The CMA found in favour of the respondent. Dissatisfied
with the CMA award, the appellant unsuccessfully challenged it before the High
Court of Tanzania. Aggrieved, the appellant lodged the instant appeal to this
Court.
Held: i) Since in terms of Rule 19(1) of the Rules, the Arbitrator is empowered
to determine how the arbitration proceedings should be conducted and parties
have not complained on the genuineness of the witnesses’ testimonies, the
procedure adopted by the Arbitrator of causing the witnesses’ and the advocates’
486
signatures to be appended at the beginning and end of the evidence ensured the
authenticity of what transpired during arbitration.
ii) Failure by the Arbitrator to append signature at the end of each witness's
testimony did not, in the circumstances of this case, occasion miscarriage of
justice to the parties. The purpose of Rule 19(1) is to make the procedure
applicable in arbitration proceedings before the CMA as simple as possible
without strictly resorting to the provisions of the CPC to attain substantive justice
iii) One of the duties of the Arbitrator who presides over the proceedings at the
CMA is to administer oath or accept affirmation from a witness. Moreover, Rule
25 (1) of the Rules provides that parties at the arbitration proceedings before the
CMA shall attempt to prove their respective cases through evidence and
witnesses shall testify under oath or affirmation. Failure by a witness to take an
oath or affirmation before he testifies, contravenes the law.
Proceedings quashed
Cases referred to
(1) Iringa International School v. Elizabeth Post, Civil Appeal No.155 of
2019;
(2) Halfan Sudi v. Abieza Chichili [1998] T. L. R. 527
(3) Finca Tanzania Ltd v. Wildman Masika and 11 Others, Civil Appeal No.
173 of 2016
(4) North Mara Gold Mine Limited v. Isaac Sultan, Civil Appeal No.458 of
2020

(1) Section 40(1) (c) of the Employment and Labour Relations Act, 2004
(2) Order XVIII Rule 5 of the Civil Procedure Code, [Cap 33 R. E. 2019]
Mr. Malongo, for Appellant

Mr. Mhagama, for Respondent

487
WAMBALI, J.A.: Khalid Abdallah Salum, the respondent was an employee of
North Mara Gold Mine Limited, the appellant, from 5th October 2008 as a
General Operator until 6th June, 2019 when his employment was terminated on
ground of misconduct. Consequent to the termination, the respondent
approached the Commission for Mediation and Arbitration (the CMA) where he
claimed compensation of one hundred (100) months salaries for unfair
termination. As the process of mediation failed, the dispute was placed before
the Arbitrator who heard evidence from both parties and in the end, he ruled that
the termination of the respondent was unfair as the appellant failed to prove that
there was valid or fair reason thereof. In the circumstances, in terms of section
40(1) (c) of the Employment and Labour Relations Act, 2004 (ELRA) the
Arbitrator awarded the respondent 48 months' salaries as compensation.
Dissatisfied with the CMA award, through Labour Revision No.25 of 2019, the
appellant- unsuccessfully challenged it before the High Court of Tanzania at
Musoma. In short, the revision was dismissed, hence the appellant lodged the
instant appeal to this Court through a memorandum of appeal comprising two
grounds of appeal. However, through the written and oral submissions in support
of the appeal, the appellant sought leave of the Court to add two grounds of
appeal. The requisite leave was granted by the Court as the respondent had no
objection. In this regard, a total of four grounds of appeal are rearranged and
reproduced as hereunder:
1. The High Court Judge erred in law in upholding the CMA
award which was based on proceedings which were a
nullity as the Arbitrator did not sign at the end of each
witness testimony.
2. The High Court Judge erred in law in upholding the CMA
award which was based on the unsworn testimonies of
witnesses.
failing to hold that the compensation of 48 months salaries
that was awarded by the CMA to the respondent for unfair
termination was not proper.
holding that the Arbitrator assigned reasons for awarding
48 months salaries which is above the prescribed
minimum of 12 months salaries.
488
Having heard the contending submissions of the counsel for the parties on this
issue and thoroughly perused the record of appeal and original record, there is
no dispute that the Arbitrator did not sign the proceedings after the testimonies
of the parties' witnesses. We are aware that the Rules guiding CMA proceedings
during arbitration are silent on the requirement of signing at the end of the
particular witness's testimony. To this end, the Court in Iringa International
School v. Elizabeth Post, Civil Appeal No.155 of 2019, took inspiration from
Order XVIII Rule 5 of the Civil Procedure Code, [Cap 33 R. E. 2019] (the CPC)
and thereby it revised and nullified the entire CMA proceedings and the High
Court by invoking the provisions of section 4(2) of the Appellate Jurisdiction
Act, [Cap 141 R.E. 2019] (the AJA).
However, in the instant appeal, in the circumstances of what has been exposed
above with regard to the style which was adopted by the Arbitrator in causing
the signature of the parties and their advocates to be appended at the beginning
of the proceedings before the witnesses started to testify and after they finished
their testimonies, we find this to be in conformity with the provisions of Rule
19(1) of the Rules. For clarity, Rule 19(1) of the Rules provides as follows:
19(1) An Arbitrator has the power to determine how the
arbitration should be conducted.
We are of the considered opinion that in the light of the style adopted by the
Arbitrator of authenticating the witnesses' evidence no miscarriage of justice was
caused to the parties. We hold this firm view because, firstly, there is no dispute
that the parties in this appeal have not questioned the authenticity of the
proceedings with regard to the testimonies of witnesses for both sides. Indeed,
this being a record of the proceedings of the trial CMA, it cannot be easily
impeached as it is presumed to be authentic of what transpired before it. Besides,
in view of the submissions of the 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. It is in this regard that in Halfan
Sudi v. Abieza Chichili [1998] T. L. R. 527 at page 529 the Court stated that:
We entirely agree with our learned brother, MNZAVAS,
JA and the authorities relied on which are loud and clear that,
“A court record is a serious document. It should not be lightly
impeached. There is always presumption that a court record
accurately represents what happened.
489
Secondly, since in terms of Rule 19(1) of the Rules, the Arbitrator is empowered
to determine how the arbitration proceedings should be conducted and parties
have not complained on the genuineness of the witnesses’ testimonies, we think
the procedure adopted by the Arbitrator of causing the witnesses’ and the
advocates’ signatures to be appended at the beginning and end of the evidence
ensured the authenticity of what transpired during arbitration.
We therefore find that the failure of the Arbitrator to append signature at the end
of each witness's testimony did not, in the circumstances of this case, occasion
miscarriage of justice to the parties.
Moreover, we firmly hold that the circumstances of this matter differ with the
circumstances which led to the decisions of the Court relied upon by the
appellant's counsel to urge us to nullify the entire proceedings of the trial CMA
and the High Court on revision. We are also aware of the decision of the Court
in Joseph Elisha v. Tanzania Postal Bank, Civil Appeal No. 157 of 2019
(unreported) in which it was acknowledged that though the Rules governing
arbitration proceedings before the CMA do not contain provisions regarding the
signing of the witnesses' testimony by the Arbitrator, it is imperative that the
signing be done to safeguard the authenticity and correctness of the record.
Nevertheless, we think the above observation is not applicable in the
circumstances of this case, because, as we have stated above, we are of the
considered opinion that the style adopted by the Arbitrator in causing the
signature of the parties and advocates to be appended before and after each
witness's testimony is in line with the provisions of Rule 19(1) of the Rules.
More importantly, we think the purpose of Rule 19(1) is to make the procedure
applicable in arbitration proceedings before the CMA as simple as possible
without strictly resorting to the provisions of the CPC to attain substantive justice
as we observed in Finca Tanzania Ltd v. Wildman Masika and 11 Others, Civil
It is in this regard that in an akin situation in North Mara Gold Mine Limited v.
Isaac Sultan, Civil Appeal No.458 of 2020 (unreported), we stated as follows:
Our conclusion on this ground is that this case is
distinguishable from the case of Iringa International School;
Unilever Tea Tanzania Limited and Joseph Elisha v. Tanzania
Postal Bank (supra) because in this case the Arbitrator
designed his own way of authenticating the evidence, which is
within his powers to do in terms of Rule 19(1) of the Rules. We
490
are fully satisfied that the absence of Arbitrator's signature at
the end of the testimony of each witness in this case, did not
vitiate the proceedings nor prejudice any party because, if
anything any possible suspicion on the authenticity of those
proceedings, was cleared by the parties and advocates signing.
Consequently, on the basis of our deliberation above, we dismiss the first ground
of appeal.
With regard to the second ground of appeal, we wish to note that during the
hearing of the appeal, counsel for the appellant contended that though the
Arbitrator indicated in his award as reflected at page 125 of the record of appeal
that Isaack Kandonga, the first witness of the appellant was sworn, the record of
proceedings of the CMA at page 14 of the same record of appeal plainly shows
that the respective witness was not sworn as required by law. In his submission,
the award did not state the true position of what transpired at the CMA when the
witness testified.
Basically, one of the duties of the Arbitrator who presides over the proceedings
at the CMA is to administer oath or accept affirmation from a witness. For the
sake of consistence, Rule 19(2) of the Rules provides as follows:
19(2) The powers of the Administrator include: -
(a) Administer oath or accept affirmation from any person
called to give evidence.
(b)N/A.
Moreover, Rule 25 (1) of the Rules provides that parties at the arbitration
proceedings before the CMA shall attempt to prove their respective cases
through evidence and witnesses shall testify under oath or affirmation.
In the instant appeal, there is, firstly, no dispute that the Arbitrator did not
exercise his powers bestowed on him under Rule 19(2) (a) of the Rules to
administer oath to PW1 and DW1.
Secondly, it is not in dispute that the provisions of Rule 25(1) of the Rules were
not complied with in respect of PW1 and DW1 as their evidence was not taken
on oath. We are aware that failure of the witness to take an oath or affirmation
before he testifies, contravenes the law as held by the Court in Catholic
University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde
491
Athanase, Civil Appeal No.257 of 2020 (unreported). The question which follow
is what is the consequence of the irregularity.
We are alive to the contending arguments of the counsel for the parties on this
issue. While the appellant's counsel contended that the entire proceedings of the
CMA should be nullified, the respondent's counsel is of the view that the
evidence of the two witnesses, that is, PW1 and DW1 should be discounted and
thereby proceed with the determination of the appeal on merit by considering the
remaining evidence in the record of appeal.
We have carefully given thought to the contending submissions. However, we
are settled that according to the record of appeal, it is only PW1 and DW1 who
did not take oath before they testified. We are therefore of the considered
opinion that it is only the proceedings in respect of these two witnesses whose
evidence should be nullified and quashed from the CMA’s record of
proceedings. Certainly, the nullification will also apply to the award of the CMA
and the proceedings of the High Court in Labour Revision No. 25 of 2019. We
hold this view because in the circumstances of this case, it will not be in the
interest of justice to nullify all the CMA proceedings, including the evidence of
PW2 who took oath before he testified for the appellant. Besides, we are
satisfied that the circumstances which led to the nullification of the entire
proceedings of the CMA in the decisions of the Court in Iringa International
School v. Elizabeth Post, Unilever Tea Tanzania Limited v. Davis Paulo
Chaula and Catholic University of Health and Allied Sciences (CUHAS) v.
Epiphania Mkunde Athanase (supra) are distinguishable with the circumstances
in the appeal at hand. It is not in dispute that in the former, it was patently found
that all witnesses for the parties were not sworn, which is not the case in the
present appeal.
On the other hand, we have no hesitation to state that in the circumstances of this
case, we are not inclined to proceed with the determination of the appeal based
on the remaining evidence in the record of appeal as suggested by Mr. Mhagama.
For it is not doubted that it is only the evidence of PW2 for the appellant which
survives the nullification. In the result, we allow the second ground of appeal. In
this regard, we find no need of venturing into the deliberation of the remaining
grounds of appeal reproduced above.
Consequently, we invoke the provisions of section 4(2) of the AJA to revise and
nullify the proceedings of the CMA with respect to the evidence of PW1 and
DW1 and the resultant award. Equally important, the proceedings of the High
492
Court in Labour Revision No.25 of 2019 are nullified and quashed. Ultimately,
we order that Labour Dispute No. CMA/MUS/187/2019 be remitted to the CMA
for rehearing the testimonies of PW1 and DW1 before another Arbitrator in
accordance with the law followed by composing the award as soon as
practicable. In the end, considering the circumstances of this appeal, we invoke
no order as to cost.
Proceedings quashed
NOVATUS WILLIAMS NKWAMA v. TUGHE

AT MBEYA
(MKUYE, GALEBA, and KIHWELO, JJ.A.)
(Appeal from the Decision of the High Court of Tanzania at Sumbawanga,
Mashauri, J., dated 21st August 2019 in Application for Labour Revision No.
03 of 2017)
Appeal – supplementary record of appeal – supplementary record of appeal
which was supposed to contain an omitted document which is the evidence of
service of the letter to the respondent not filed contrary to the court’s order –
whether the omission vitiated the appeal.
Time limitation – record of appeal – whether there is no time limit for effecting
service of letters requesting for certified copies of proceedings to the
respondents - Rule 90(3) of the Rules.
Court practice – order of the court – failure to comply with the order of the court
to lodge a document or documents – consequences thereto.
The appellant was an employee of the respondent. The employment came to an

end at the instance of the appellant who wrote a letter of resignation. At that time,
the appellant was the respondent's Regional Secretary for Rukwa Region. All
was well until around one and a half years later, when the appellant filed a matter
at the Commission for Mediation and Arbitration (the CMA). The CMA passed
an award dismissing the appellant's claim. The appellant was aggrieved by that
award. He lodged revision in the High Court. Nonetheless, the revision was not
493
successful, hence this appeal. This appeal is seeking to challenge that decision
of the High Court.
Held: i) The law, Rule 96 (7) of the Rules, is that for a supplementary record to
be valid and of supplementary or additional value, it must contain a document or
documents which was or were omitted in the existing record of appeal.
ii) The fact that Rule 90(3) of the Rules does not set a definite time frame within
which to effect service of the letter to the respondent, does not imply that there
is no such time period under the law. The time period is there and it is thirty
days.
iii) Where there is an order of the Court to lodge a supplementary record of
appeal, but the order is not complied with such that the supplementary record is
not lodged, the original record of appeal is deemed incomplete and accordingly,
incompetent. Legally, an incompetent appeal is a defective appeal and it is liable
to be struck out.
Appeal struck out
Cases referred to
(1) Principal Secretary, Ministry of Defence and National Service v. Devram
Valambhia [1992] T.L.R. 387
(2) Elizabeth Jerome Mmassy v. Edward Jerome Mmassy and Six Others,
(3) Nakomolwa Matepeli Shila v. Mwanahamisi Ally Nongwa (Legal
Representative of Kidawa Seif (the Deceased), Civil Appeal No. 21 of
2016
(1) Rule 96 (7) of the Tanzania Court of Appeal Rules, 2009;
Mr. Rwekaza, and Ms. Marunda, for Appellant

Mr. Ntonge, for Respondent
RULING OF THE COURT

494
GALEBA, J.A.: This appeal has origins in an industrial dispute that has been
live between the parties for about nine years. The appellant, Novatus Williams
Nkwama was employed by the respondent until 3rd May 2013, when their
employment relationship fell apart. The employment came to an end at the
instance of the appellant who wrote a letter of the above date, resigning from the
relation for reasons contained in the letter. At that time, the appellant was the
respondent's Regional Secretary for Rukwa Region. All was well until around
one and a half years later on 16th February 2015, to be exact, when the appellant
signed CMA F1 and lodged it in the Commission for Mediation and Arbitration
(the CMA) thereby commencing Labour Dispute No. RK/CMA/SBA/11/2015.
In that form the appellant was complaining of constructive termination and was
seeking for reinstatement or payment by the respondent of Tanzania Shillings
450,000,000/= and general damages.
There were several other rulings in relation to the preliminary objections
and applications before the CMA was to decide the main dispute, including the
one for condonation and another seeking to transfer the dispute to the
headquarters in Dar es Salaam. Nonetheless, those interlocutory matters are not
of immediate relevance to this ruling. Of importance is that, on 24th June 2016
the CMA passed an award dismissing the appellant's claim of being
constructively and unfairly terminated. It further ordered the appellant to pay the
respondent Tanzania Shillings 18,666,116/= being refund of the respondent's
financial resources she had spent in liquidating the appellant's pecuniary
indebtedness in favour of various financial institutions and the respondent
herself, after he had left employment.
The appellant was aggrieved by that award. He lodged Labour Revision No. 03
of 2017 in the High Court to challenge the CMA award. Nonetheless, he was
not successful, for his appeal was dismissed on 21st August 2019. This appeal is
seeking to challenge that decision of the High Court, and to do that the appellant
predicated this appeal on seven grounds of appeal. However, for reasons that
will become obvious shortly, we do not intend to refer to or discuss the merits
of any of the said grounds, in this ruling.
In this appeal two issues have been raised. One is that the appellant did not
comply with the Order of the Court dated 29th November 2021 by filing a
document of proof of service of the letter and the other is that the appellant did
495
not serve the notice of appeal to the respondent within fourteen days as required
by Rule 84(1) of the Rules.
We propose to start with the first point concerning the supplementary record of
appeal which was supposed to contain an omitted document which is the
evidence of service of the letter to the respondent. Rule 96(7) of the Rules, under
which leave to file the disputed supplementary record of appeal was sought,
(7) Where the case is called on for hearing, the Court is of
opinion that document referred to in rule 96(1) and (2) is
omitted from the record of appeal it may on its own motion
or upon an informal application grant leave to the appellant to
lodge a supplementary record of appeal. [Emphasis added]
In this case, on 29th November 2021, the appellant's counsel prayed for leave to
present to the Court a supplementary record of appeal containing a document
evidencing service to the respondent, of the letter requesting for certified
proceedings from the Registrar of the High Court. The issues for determination
in this aspect are two; one, whether the supplementary record of appeal
constituted a document evidencing service of the letter to the respondent, which
evidence had been omitted in the original record of appeal, and two whether the
evidence, if any, was effected on the respondent within the appropriate time
limit.
In resolving the first issue we will have to thoroughly analyse the document
contained at page 669 which was also contained in the supplementary record as
evidence of service of the letter in question. The exact text of that document
which was issued by Tanzania Posts Corporation on 11th November 2019 is
reproduced hereunder:
TANZANIA POSTS CORPORATION DAR ES SALAAM
GPO
CASH MENU
……………………..
“Invoice Number 3201-1119615770 Date: 11/11/201910:30
Emp. & Counter: ASIA MHAGAMA (110)
…………………………
EMS Domestic Documents Destination Kibaha [3209] Item
Weight: 30GMS Item No.: EE217896333TZ
496
……………………………………………………………..
Details Postage Amount VAT
Total
Amount 1 000.00
Payable
Payment
Details Cash
TSH 1 000.00
Sender: NOVATUS W NKWAMA
Address: BOX 37 BUKOBA Phone: 0754393731
Addressee: KATIBU MKUU

Address: TUGHE MAKAO MAKUU BOX 4669 KIBAHA
………………………….
TIN: 10-009045-V
Ahsante kwa kutumia huduma POSTA.
497
In determining whether the above document satisfied both the order of 29th
November 2021 and the law, particularly Rule 96(7) of the Rules also quoted
above, we have carefully and very closely dissected the above quoted document
and upon a thorough review of the document, we have noted the following:
First, the document shows that, the sender of the documents that
were sent is NOVATUS W. NKWAMA of P. 0. BOX 37
BUKOBA, the appellant and the addressee is KATIBU MKUU
of TUGHE MAKAO MAKUU, BOX 4569 KIBAHA.
Second, the document does not indicate anywhere across its text
that what was sent by the sender to the addressee was a copy of
the letter from the appellant to the Registrar of the High Court
requesting for certified proceedings for appeal purposes. That is
to say, the document in the supplementary record of appeal does
not disclose the distinctive character or nature of the documents
it evidences to have been sent by the appellant to the respondent.
For clarity of this point, in the 7th line from the top of the
document reproduced above specifies the documents that were
sent to be “EMS Domestic Documents”.
Third, the other strange or unusual feature of the above copied
document is that, whereas Rule 96(7) of the Rules expressly
provides that a document or documents to be brought by way of
a supplementary record of appeal must be a document or
documents that are not part of the record of appeal at the time
the order is made, the above document, although brought as a
supplementary record of appeal, was and it is presently in the
record of appeal at page 669. That is to say, the supplementary
record of appeal does not contain anything that was omitted or
that was not included in the main record of appeal.
Analysis of the above three points, particularly the second, indicates without
doubt that there is no evidence in that document that what was sent by the
appellant to the respondent was a copy of the letter he sent to the Registrar of the
High Court. That document is clear as to what was sent. It says the documents
sent were ''EMS Domestic Documents”. We fail to equate the EMS Domestic
Documents and the letter we are discussing. The argument by Ms. Marunda, that
498
at Tanzania Posts Corporation, they do not write the name of the documents
contained in the parcel, but they just write ''EMS Domestic Documents" does not
in any way change the fact that the document issued to her client does not mention
that what was couriered is the letter subject of this discussion.
It is further our observation that the supplementary record of appeal lodged
by the appellant, in so far as it brings to the existing record a document which is
already in the original record of appeal, in the context of Rule 96(7) of the Rules
quoted above, the supplementary record is not supplementary at all. The law (Rule
96(7) of the Rules) is that for a supplementary record to be valid and of
supplementary or additional value, it must contain a document or documents
which was or were omitted in the existing record of appeal.
The above discussion enables us answer the first issue we earlier framed, in that
the supplementary record of appeal constituted no document evidencing service
of the letter to the respondent, which had been omitted in the original record of
appeal.
That gives us space to proceed to the second issue, in the context of Mr. Ntonge's
argument that assuming, for the sake of argument, that the evidence of service
was the document in the supplementary record of appeal as contended by Ms.
Marunda, still service of the letter would have been effected out of time. Ms.
Marunda's position was that there is no time limit for effecting service of letters
requesting for certified copies of proceedings to the respondents in Rule 90(3) of
the Rules. This is the aspect to which we will now turn for discussion.
According to the letter subject of this ruling, contained at page 667 of the record
of appeal, it was written on 10th September 2019 and it was served to the deputy
Registrar of the High Court on 17th September 2019. However, the document
(quoted above) alleged to be evidence of service of the letter to the respondent is
dated 11th November 2019 which is 55 days between the two dates. The question
we have to resolve is whether there is any maximum time set to serve the letter to
the respondent or there is not such time limit.
Admittedly, Rule 90(3) of the Rules, which Ms. Marunda referred us to, provide
for no time frame to serve the letter to the respondent, for it provides that:
(3) An appellant shall not be entitled to rely on the exception to
sub-rule (1) unless his application for the copy was in writing
and a copy of it was served on the Respondent.
499
However, in the case of the Principal Secretary, Ministry of Defence and National
Service v. Devram Valambhia [1992] T.L.R. 387, the Court held as follows:
There must be a time limit within which the appellant is to serve
the respondent with a copy of the letter to the Registrar. We
think that the period of 30 days within which the appellant is
required under rule 83(1) [now Rule 90(1) of the Rules] to apply
to the Registrar for a copy of the proceedings should be
construed to be co-extensive with the period within which
the appellant has to send a copy of that letter to the respondent.
We are aware that when the Valambhia case above was being decided, the Rules
in place were the Tanzania Court of Appeal Rules 1979, the revoked Rules,
nonetheless the substance of the above quoted part of that decision has recently
been adopted in many decisions made under the present 2009 Rules including this
Court's decision in Elizabeth Jerome Mmassy v. Edward Jerome Mmassy and Six
Others, Civil Appeal No. 390 of 2019 (unreported). In the circumstances, we
therefore do not agree with Ms. Marunda that because Rule 90(3) of the Rules
does not set a definite time frame within which to effect service of the letter to the
respondent, then there is no such time period under the law. The time period is
there and it is thirty days. That said, it does mean that service of the letter, even if
it was to be inferred, as Ms. Marunda submitted, that it was served, the same
having been so served after 55 days from when it's original was delivered to the
Registrar of the High Court, the same would still be beyond 30 days, the period
legally permitted. This part of the ruling resolves the second issue we had framed
on whether or not there is a specific time limit to serve the letter.
Next for discussion is the legal consequences of the finding we have made above,
the finding that both the order of this Court dated 29th November 2021 and Rule
96(7) of the Rules, were breached. The law is that where a party obtains leave to
lodge a document or documents omitted in the original record of appeal by way
of a supplementary record under Rule 96(7) of the Rules and fails to comply with
the order, like it happened in this case, the consequences were stated in the case
of Nakomolwa Matepeli Shila v. Mwanahamisi Ally Nongwa (Legal
Representative of Kidawa Seif (the Deceased), Civil Appeal No. 21 of 2016
(unreported). In that case, this Court stated that:
Therefore, in the current appeal having found that the appellant
failed to comply with the order of this Court to enable the Court
500
to properly determine the appeal before us on merit and there
being no room to allow the appellant another chance to file the
same by virtue of Rule 96(8) of the Rules as such the record of
appeal before us is incomplete and consequently incompetent.
...In any case our hands are tied by various decisions of the Court
and we are thus compelled upon our finding that the appeal is
incomplete hence incompetent we proceed to strike out the
appeal.
The point we gather from the above quotation, is that where there is an order of
the Court to lodge a supplementary record of appeal, but the order is not complied
with such that the supplementary record is not lodged, the original record of
appeal is deemed incomplete and accordingly, incompetent. Legally, and as per
the above authority an incompetent appeal is a defective appeal and it is liable to
be struck out.
In conclusion therefore, one, as there was no evidence of service of the letter to
the Registrar requesting for certified copies of proceedings in the alleged
supplementary record of appeal, it means the appellant failed to comply with this
Court's order dated 29th November 2021. Two, as the document which was lodged
in the supplementary record of appeal had not been omitted in the original record
of appeal as observed in this ruling, the appellant offended the provisions of Rule
96(7) of the Rules which require a supplementary record to contain a document
which is not part of the original record of appeal. Three, we also indicated that
even if we were to assume that service was effected on 11th November 2019, the
same would have been effected out of time. All these multiple maladies from
which this appeal suffer, attract one common remedy, to strike out the appeal.
In the event, and for the above reasons, this appeal is hereby struck out.
As the order we have made above has the effect of completely winding up this
appeal, we find any attempts to seek to determine the second issue that the appeal
is incompetent for offending Rule 84(1) of the Rules, to be a worthless and a futile
venture with no possibility of yielding any functional results. It is for that reason
that we have paid no heed to determine the issue relating to the notice of appeal.
Finally, we make no orders as to costs because, we indicated at the beginning of
this ruling that this appeal arose from a labour dispute. It is so ordered.
Appeal struck out
501
NYANZA ROAD WORKS LIMITED v. GIOVANNI GUIDON
AT DODOMA
(LILA, KOROSSO, and MWANDAMBO, JJ.A.)
(Appeal from the ruling and order of the High Court of Tanzania, at Dodoma,
MasaJu, J., dated 15th August, 2019 in Labour Revision No. 8 of 2016)
Application for Extension of time – sickness – whether the High Court exercised
its discretion properly in quashing the decision of the CMA and condoning the
delay on the ground of the respondent's sickness.
Application for extension of time – expeditious resolution of disputes –whether
expeditious resolution of the disputes should prevail over compliance with the
timelines for referring labour disputes before the CMA.
The appellant employed the respondent in the post of project manager on fixed
term contract renewable for every two years. The relationship between the parties
went sour, resulted into termination of the respondent’s employment. The
respondent's termination gave rise to a labour dispute which had to be resolved by
the CMA upon the aggrieved employee referring to it within the prescribed 30
days. However, the respondent failed to do so within the prescribed period.
Accordingly, the respondent lodged an application for extension of time before
the CMA which was struck out. The CMA declined to extend the time upon
being satisfied that the respondent had not shown good cause for the delay.
Aggrieved, the respondent challenged the CMA decision before the High Court
by way of revision. The High Court granted the application for extension of time.
It is that decision which aggrieved the appellant and hence the instant appeal.
Held: i) It is long settled that the court's discretion must be exercised judiciously
as opposed to capriciousness on the basis of material placed before it for
consideration, especially where there is no dispute on the issue of sickness which
ordinarily constitute good cause.
ii) Expeditiousness in disposing of cases must be subject to the dictates of the law
and justice. Speed is good but justice is best.
502
iii) The Labour Court is a court of law and equity which ought to have regard to
the fact that the duty to act promptly is not a mere technical aspect without any
consequences in case of failure by a litigant to exercise his remedy.
Appeal allowed
Cases refereed to
(1) John David Kashekya v. The Attorney General, Civil Appliec1tion No. 1
of 2012
(2) Independent Power Tanzania Ltd & Another v. Standard Chartered Bank
(Hong Kong) Limited, Civil Revision No. 1 of 2009
(3) Lindsey Petroleum Company v. Hurd and Others (1873-74) LR 5 PC 221

(1) Section 5(2) (d) of the Appellate Jurisdiction Act [Cap 141 R.E. 2019]
(2) Rule 106(1) of the Court of Appeal Rules, 2009,
Mr. Ringia, for Appellant

Messrs. Machibya and Yongolo, for Respondent
Dated 20th August, 2021
MWANDAMBO, J.A.: The issue involved in the instant appeal revolves around
a narrow compass. It relates to the exercise of discretion by the High Court in an
application for revision from the decision of the Commission for Mediation and
Arbitration (the CMA) rejecting an application for condonation for referring a
labour dispute.
The facts giving rise to the instant appeal are, by and large, not in dispute between
the parties. By an agreement dated 7/10/2013, the appellant employed the
respondent in the post of project manager for two years commencing on
1/10/2013. That agreement was a renewal of previous agreements the first having
been executed in the year 2007. All appear to have been well between the parties
503
until January, 2014 when the respondent noticed some unusual conduct from the
appellant manifested by refusal to pay rent for his house and salaries for March
and April, 2014. According to the respondent, the attempts to negotiate
termination ended in vain, for on 13/05/2014, the appellant confirmed its decision
to terminate the contract. Earlier on, the respondent had attempted to seek the
intervention of the Prime Minister but to no avail.
Naturally, the respondent's termination gave rise to a labour dispute which had to
be resolved by the CMA upon the aggrieved employee referring to it within 30
days of its occurrence pursuant to rule 10(1) of the Labour Institutions (Mediation
and Arbitration) Rules, G.N. No. 64 of 2007. However, the respondent failed to
do so within the prescribed period. As he was late, he could not refer his dispute
without making an application before the CMA for extension of time otherwise
referred to as condonation of the delay. Accordingly, the respondent lodged an
application before the CMA on 28/08/2014 for that purpose. However, that
application hit some procedural obstacles resulting into it being struck out and
filing a fresh one on 14/11/2014 which was dismissed on 13/02/2015.
The CMA declined to extend the time upon being satisfied that the
respondent had not shown good cause for the delay. Aggrieved, the respondent
challenged the decision of the CMA before the High Court by way of revision.
Unlike the CMA, the High Court was satisfied that the applicant was known to be
surviving on pacemaker medical device and frequently travelling to Italy for
medical attention and so he had demonstrated good cause which warranted
extension of time. On that score, the High Court (Masaju, J) found merit in that
application and granted it resulting into an order quashing the ruling of the CMA
and ordering it to determine the labour dispute on its merits. It is that decision
which aggrieved the appellant and hence the instant appeal.
The appellant, who was represented by Mr. Ludovick Joseph Ringia, learned
advocate, has preferred a memorandum upon three grounds of appeal. However,
we think all grounds boil into one major issue, that is to say; whether the High
Court was right in holding that the respondent's delay in referring a labour dispute
before the CMA was due to his sickness. Initially, the respondent who, during the
hearing of the appeal was represented by Messrs. Elias Machibya and Nkumuke
Yongolo, learned advocates, had raised a preliminary objection challenging the
competence of the appeal premised on section 5(2) (d) of the Appellate
Jurisdiction Act [Cap 141 R.E. 2019] (the AJA). Upon reflection, the learned
504
advocates prayed to abandon the said objection and the Court marked it
withdrawn thereby paving a way for the determination of the appeal on its merits.
The learned advocate for the, appellant implored the Court to find merit in the
appeal on the strength of the written submissions he had lodged earlier on pursuant
to rule 106(1) of the Court of Appeal Rules, 2009, henceforth the Rules. He did
not find it necessary to be heard orally so did the learned advocates for the
respondents who had filed their written submissions in reply pursuant to rule
106(8) of the Rules. Admittedly, the learned advocate for the appellant made
fairly lengthy submissions on the grounds of appeal. Without any disrespect to
him, we shall not belabor much on them considering that the issue for our
consideration and determination revolves around a narrow compass.
From the learned advocates' submissions, there is no dispute with regard to the
factors to be taken into account in exercising discretion. The authorities relied
upon by the learned advocates are quite felicitous to the issue for our
determination in this appeal. Without specifically referring to each, we shall have
regard to them in determining the appeal.
As alluded to earlier on, the central question for our determination is whether the
High Court exercised its discretion properly in quashing the decision of the CMA
and condoning the delay on the ground of the respondent's sickness. What appears
to be in dispute is whether there was sufficient material before the High Court for
the exercise of its discretion in the manner it did.
Before arriving at the impugned decision, the learned Judge was satisfied that the
main reason for the respondent's delay was, but his sickness and medical attention
in Italy. Having scanned through the affidavit, counter affidavit and reply before
him in an application for revision, the learned Judge set himself to determine the
issue whether or not the applicant (now respondent) advanced good cause for the
condonation before the CMA. He said as follows:
That said the court is of the considered position that a Heart
failure condition of which the Applicant is a known case to the
Respondent and there are medical reports to that effect which
was made available to the CMA Tribunal, and that the Applicant
was surviving on peacemaker (sic!) medical device implanted
into his heart and that the Applicant was frequenting Italy for
medical attention of his condition merit good cause for delay
hence the need for condonation accordingly upon such facts
505
being mac'e known and proved to the court or tribunal. [at pages
326 and 327]
Concluding, the learned judge stated:
That being the case, the CMA Tribunal was wrong when it held
that the Applicant had to demonstrate how the sickness
presented him from acting timely for all the time of delay. The
sooner the rights to be heard fairly and the legal remedies thereof
are appreciated by courts and tribunals the better. [at page 326-
327 of the record of appeal].
Simply stated, the learned Judge was satisfied that the respondent's delay was
wholly attributed to his heart complications and the attendant medical attention
which is at centre of the appellant's complaint. There is no dispute that the
respondent had heart complications and attending medical attention in Italy. The
respondent had been implanted with a pacemaker as early as 2007 judged from
the document marked annexure MPA 3 at page 51 of the record of appeal. That
would suggest that the heart complications did not emerge immediately after the
occurrence of the labour dispute. The record shows that the early symptoms of
the, dispute started as early as January 2014 when the appellant refused to pay
rent for the respondent's rented house in Dodoma which was one of the terms of
the employment contract. Further, in March 2014 the appellant refused to pay the
respondent's monthly salary and that continued in April 2014 reaching a climax
on 13/05/2014 when the appellant confirmed the termination of the respondent's
employment contract following abortive negotiations for a termination
agreement.
What it means by the foregoing is that the dispute on the terms of employment
contract had indeed begun much earlier than 13/05/2014. Instead of the
respondent referring the dispute to the CMA, he chose to complain to the Prime
Minister's office for intervention as evident at page 46 and 47 of the record of
appeal. Even though the respondent had indicated in CMA F1 that the dispute
arose on 31/03/2014, the CMA found as a fact that it arose or, 13/05/2014 when
the appellant terminated the employment. Nonetheless, he did not take any step
to refer his dispute to the CMA immeditely thereafter. It follows thus that since
the CMA ruled that the cause of action arose on 13/05/2014, the respondent had,
506
in terms of rule 10 (1) of G. N. No. 64 of 2007, up to 13/06/2014 to refer his
dispute before the CMA which he didn't.
From the learned advocates' submissions, there is no dispute with regard to the
factors to be taken into account in exercising discretion. The authorities relied
upon by the learned advocates are quite felicitous to the issue for our
determination in this appeal. There was no dispute that the respondent travelled
to Italy for treatment on 25/05/2014; twelve days after the occurrence of the
dispute and returned to Tanzania on 9/06/2014 before the expiry of the period for
referring the dispute to the CMA. As the record will bear testimony, the
respondent referred his dispute with an application for condonation before the
CMA on 28/08/2014 long after the expiry of the period for referring his dispute.
It is for this reason the CMA was not satisfied that the heart complications and
medical attention were the only reasons for the delay; the respondent had failed
to account for a period from 9/6/2014 to 28/08/2014 and hence the dismissal of
his application.
From the foregoing, we have no lurking in endorsing the submission by the
learned advocate for the appellant that the learned High Court Judge appears to
have placed much weight on the respondent's sickness and undeniably he was
carried away by sympathy. Judged by the extract from the ruling reproduced
above, the learned Judge appear to have in mind expeditious resolution of the
dispute to prevail over the compliance with the timelines for referring labour
disputes before the CMA. With respect, we do not share his sentiments however
well-intentioned they may have been made. Firstly, it is long settled that the
court's discretion must be exercised judiciously as opposed to capriciousness on
the basis of material placed before it for consideration. While there is no dispute
on the respondent's heart complications which would ordinarily constitute good
cause, the respondent did not satisfy the CMA that the delay was solely due to
sickness. We think the learned advocates for the respondent's reference to John
David Kashekya v. The Attorney General, Civil Appliec1tion No. 1 of 2012
(unreported) can only be relevant where sickness is the sole reason for the delay
and properly explained. At any rate, even assuming the respondent's illness
prevented him from referring his dispute within the prescribed time, there is no
explanation why he delayed in applying for condonation for as long as more than
two months reckoned from 13/06/2014. Unfortunately, the learned Judge directed
his attention to the respondent's illness in the absence of evidence how was it
material to not only the delay but also failure to lodge his application for
507
condonation immediately after the lapse of 30 days. Secondly, while we agree
with the learned Judge on the expeditious resolution of disputes, we think that
expeditiousness must be subject to the dictates of the law and justice. As we had
occasion to remark in Independent Power Tanzania Ltd & Another v. Standard
Chartered Bank (Hong Kong) Limited, Civil Revision No. 1 of 2009 (unreported),
speed is good but justice is best (at page 26). And by justice we mean justice to
both parties to the dispute. In this regard, we think it may not be completely out
of place to refer to yet another old maxim; Vigilantibus ron dormientibus jura
subveniut which literally means that the law assists the vigilant and not those who
sleep. We have no doubt the passage from an old decision delivered on
20/01/1874 in Lindsey Petroleum Company v. Hurd and Others (1873-74) LR 5
PC 221 is still valid where the Privy Council stated:
The doctrine of laches in Court of equity is not an arbitrary or
technical doctrine. Where it would be practically unjust to give
a remedy either because the party has by his conduct done that
which might fairly be regarded as an equivalent to a waiver of it
or where by his conduct and neglect he has though perhaps not
waived that remedy, put the other party in a situation in which it
would not be reasonable to place him if the remedy were
afterwards to be asserted in either of these cases, lapse of time
and delay are most material.
We appreciate that in terms of rule 3(1) of the Labour Court Rules, G.N. No. 106
of 2007, the High Court exercising jurisdiction as a Labour Court is a court of law
and equity which ought to have regard to the fact that the duty to act promptly is
not a mere technical aspect without any consequences in case of failure by a
litigant to exercise his remedy as it were. We have no doubt that had the High
Court have regard to the above, it should not have exercised its discretion in the
respondent's favour and quashed the decision of the CMA as it did.
That said, we find merit in the appeal and allow it with net effect that the
decision of the High Court is hereby reversed restoring that of the CMA
dismissing the application for condonation. As the appeal arose from a labour
dispute in which costs are not ordinarily awarded, we allow the appeal with no
order as to costs.
Appeal allowed
508
PANGEA MINERALS LIMITED v. GWANDU MAJALI
AT SHINYANGA
(MUGASHA, KITUSI, and MASHAKA, JJ.A.)
(Appeal from the Ruling and Order of the High Court of Tanzania (Labour
Division) at Shinyanga, Makani, J., dated 14th December, 2018 in Labour
Reliefs – Repatriation costs – circumstances in which they can be granted.
Reliefs – subsistence allowance – the manner in which it is calculated.
Reliefs – awarding of compensation – rules governing thereto.
Court practice – exercise of discretionary power – circumstances upon which an
appellate court can interfere with the exercise of discretion of an inferior court or
tribunal.
The respondent was employed by the appellant as a senior mechanical filter.

Following misunderstandings between the parties, the respondent tendered
resignation and subsequently instituted a complaint at the Commission for
Mediation and Arbitration (the CMA) claiming constructive termination. The
CMA decided in favour of the respondent. The respondent was still unsatisfied
with the CMA award. He successfully lodged a Revision application to the High
Court seeking review of the CMA's award, hence, this appeal by the appellant.
Held: i) When an employee's contract is terminated at a place other than where
the employer was recruited, the employer is obliged to cover costs for transport.
The transport costs for the employee, his dependents and his personal effects are
statutory entitlements.
ii) The sufficiency or otherwise of the payment of repatriation costs is a matter of
fact and not of law, it cannot be entertained by the Court.
iii) It is settled law that, the rate of subsistence allowance pending repatriation, is
calculated on the basis of daily salary of a monthly salary for the whole period the
employee awaits payment of repatriation or travel expenses.
iv) It is settled law that the discretion to make award of compensation must be
judiciously exercised and if not, the higher court can interfere with the same.
509
v) In exercising its discretionary powers to revise the CMA award the High Court
sitting in revision, is required to consider if the arbitrator made a proper evaluation
of all the facts and circumstances and whether or not the decision was judicially
a correct one.
Appeal allowed
Cases referred to
(1) Elia Kasaile and Others v. Institute of Social Work, Civil Application No.
187 of 2018;
Revenue A uthority, Civil Appeal No. 167 Of 2019; and
(3) Kilombero Sugar Company Limited Vs Commissioner General (TRA),
Civil Appeal No. 14 of 2007 ;
Eklr;
(5) Credo Siwale v. The Republic, Criminal Appeal No. 417 of 2013 and
Mbogo and Another v. Shah [1968] EA 93.; and
(6) Felician Rutwaza v. World Vision Tanzania, Civil Appeal No. 213 of
2019.

(1) Section 40 (1) (c) of the Employment and Labour Relations Act [Cap 366
R.E. 2002];
(2) section 25 (2) of the Tax Revenue Appeals Act, [Cap. 408 R.E. 2006]
(now R.E. 2019).

Mr. Muheza, for Respondent
510
MUGASHA, J.A.: In this appeal, the appellant is faulting the decision of the High
Court which was made in favour of the respondent against unfair termination. A
brief background to the matter is to the following effect: The respondent was
employed by the appellant as a senior mechanical filter from 01/11/2008. He was
also a chairperson of the Branch of Trade Union for Mining Workers (TAMICO)
at the place of work. Following misunderstandings between the parties, the
respondent tendered resignation and subsequently instituted a complaint at the
Commission for Mediation and Arbitration (the CMA) claiming constructive
termination on ground that the appellant made continued employment intolerable
to the effect that, he was unfairly treated; denied salary increments and promotion;
accused of concentrating mostly with the affairs of TAMICO and employer's
failure to comply with contractual terms and conditions among others. He claimed
to be paid compensation of not less than 36 months' remuneration for losing
employment. In addition, he claimed to be paid repatriation costs in terms of
attachment "A" as indicated at page 13 of the record of appeal.
The CMA was satisfied that the appellant made working condition intolerable to
the respondent, which was tantamount to constructive termination. As such, it
ordered that the respondent be paid 18 months' salary in terms of section 40 (1)
(c) of the Employment and Labour Relations Act [Cap 366 R.E. 2002] (the
ELRA). Undaunted, the respondent lodged a Revision application to the High
Court seeking review of the CMA's award. The respondent was successful having
won as the learned Judge of the High Court granted the following reliefs to the
respondent:
(a) Compensation of thirty-six (36) months' salaryas prayed.
(b) Travel costs for four of the applicant's dependants to Dodoma
as prayed.
(c) Costs for transport of the applicant's personal effects to
Dodoma as prayed.
(d) Daily subsistence allowance to the employee (not his
dependants) from the date of termination to the date of
payment.
(e) Severance allowance as prayed.
511
The appellant has now come to this Court challenging the verdict of the High
Court in a 5-point memorandum of appeal as hereunder reproduced:
1. The High Court erred in law in holding that the Respondent
suffered several damages and hardship which was not alleged
and proved in the Commission for Mediation and Arbitration.
2. The Honourable High Court Judge erred in law and in fact in
substituting the Commission for Mediation and Arbitration
award of 18 months salaries with 36 months salaries without
valid justification.
3. The High Court erred in law and in fact in ordering that the
Respondent is entitled to be paid travel costs for the Respondent
and his dependants and transportation of personal effect to
Dodoma.
4. The High Court erred in law and in fact in ordering that the
Respondent is entitled to be paid daily subsistence from the date
of termination to the date of payment.
5. The High Court decision is not supported by evidence adduced
at the Commission for Mediation and Arbitration.
At the hearing, the appellant was represented by Mr. Faustine Anthony Malango
and Ms. Caroline Lucas Kivuyo, both learned counsels. The respondent had the
services of Mr. Bakari Chubwa Muheza, learned counsel. To bolster their
arguments for and against the appeal, learned counsel adopted the written
submissions earlier filed. In the course of hearing the appellant's counsel
abandoned the 5th ground of appeal and we marked it so.
The appellant's counsel argued the first and second grounds together in which the
High Court is faulted to have varied the award of the CMA basing on extraneous
considerations on the alleged sufferings by the appellant which were neither
pleaded nor proved at the CMA or the High Court. On this it was argued that,
while the CMA judiciously exercised its discretion in making the award on ground
that the employer made employment intolerable, the High Court varied the CMA's
award basing on the post effects of the termination which was not a subject before
the CMA. To support his propositions, he referred us to the case of Elia Kasaile
and Others v. Institute of Social Work, Civil Application No. 187 of 2018
(unreported) where the Court is said to have interpreted the general discretionary
512
powers in determining compensation which is specifically provided under section
40 (1) (c) of the ELRA.
Pertaining to the 3rd ground, the High Court is faulted to have ordered that
the respondent be paid travel costs for his dependants and personal effects. It was
the appellant’s counsel argument that since the respondent was paid a cash sum
of TZS. 155,000/= and had adduced no contrary evidence on the sum being not
sufficient, the appellant was absolved from liability in terms of section 43 (1) of
the Act. Therefore, it was the appellant's counsel argument that the order by the
High Court that the respondent be paid travel costs of four dependants and
personal effects to Dodoma is unjustified. Finally, and which addresses the fourth
ground of appeal, it was argued that since the respondent was paid repatriation
costs, he was not entitled to any subsistence allowance as found by the learned
High Court Judge. Ultimately, the learned counsel urged the Court to allow the
appeal, quash the decision of the High Court and reinstate the award of the CMA.
On the other hand, the appeal was opposed by the respondent whose learned
counsel's reply to the appellant's submission was to the effect that: The decision
of the High Court in varying the award of the CMA is justified because, the
learned Judge considered circumstances surrounding the case in concluding that
the respondent who suffered damages is entitled to salaries of 36 months. To back
up this proposition, the case cited was Access Bank Tanzania v. Raphael Dismas
[2015] 1 LCCD 53. He distinguished the case of Elia Kasalile and Others (supra)
on ground that, it is irrelevant because the Court refused to deal with the question
of discretionary powers as a ground of review. He as well added that, the High
Court in exercising discretion to award compensation, is not barred from
interfering with the award of CMA.
Pertaining to the complaint for payment of repatriation costs, it was contended
that the sum of TZS. 155,000/ = paid to the respondent was not sufficient to cater
for the entire repatriation costs and as such, the intervention by the learned
Judge of the High Court that repatriation costs be paid was justified. Thus, it was
finally submitted that, in the absence of full payment on the repatriation costs, the
respondent could not move to the place of recruitment and therefore, he was
entitled to be paid subsistence allowance as correctly found by the High Court.
We are aware that in terms of section 57 of the Labour Institutions Act, appeals
to the Court shall only be on points of law. The said provision stipulates as
follows:
513
Any party to the proceedings in Labour Court may appeal
against the decision of the High Court to the Court of Appeal
on points of law only.
In the cases of Atlas Copco Tanzania Limited v. Commissioner General, Tanzania
Revenue Authority, Civil Appeal No. 167 Of 2019; and Kilombero Sugar
Company Limited Vs Commissioner General (TRA), Civil Appeal No. 14 of 2007(
both unreported), the Court defined the phrase “matters involving questions of
law only” upon which a party could appeal to the Court from any decision of the
Tax Revenue Appeals Tribunal in terms of section 25 (2) of the Tax Revenue
Appeals Act, [Cap. 408 R.E. 2006] (now R.E. 2019). Having referred to among
others the decision of the Supreme Court of Kenya in Gatirau Peter Munya v.
Dickson Mwenda Kithinji & Three Others [2014] eKLR, the Court, then, defined
the phrase “question of law” as follows:
Thus, for the purpose of section 25 (2) of the TRM, we think, a
question of law means any of the following: first, an issue on
the interpretation of a provision of the Constitution, a statute,
subsidiary legislation or any legal doctrine on tax revenue
administration. Secondly, a question on the application by the
Tribunal of a provision of the Constitution, a statute, subsidiary
legislation or any legal doctrine to the evidence on record
Finally, a question on a conclusion arrived at by the Tribunal
where there is failure to evaluate the evidence or if there is no
evidence to support it or that it is so perverse or so illegal that
no reasonable tribunal would arrive at it.
The cited decision defining what entails a question of law was applied in the
labour case of CMA CGM Tanzania Limited v. Justine Baruti, Civil Appeal No.
23 of 2020 (unreported). We shall thus be accordingly guided by among others
the said principle in determining the present appeal in particular the third ground
of complaint which is in relation to the sufficiency or otherwise of the repatriation
costs. Section 43. - (1) of the Employment and Labour Relation Act, regulates
what constitutes repatriation costs in the following terms:
Section 43(1); Where an employee1s contract of employment
is terminated at a place other than where the employee was
recruited the employer shall either-
514
(a) Transport the employee and his personal effects to the place
of recruitment,
(b) Pay for the transportation of the employee to the place of
recruitment, or
(c) Pay the employee an allowance for transportation to the place
of recruitment in accordance with subsection (2) and daily
subsistence expenses during the period, if any, between the date
of termination of the contract and the date of transporting the
employee and his family to the place of recruitment.
In the light of the cited provision, when an employee's contract is terminated at a

place other than where the employer was recruited, the employer is obliged to
cover costs for transport. That being the case, the transport costs for the employee,
his dependents and his personal effects are statutory entitlements as claimed by
the respondent in Attachment 'A' which was part of the pleadings before the CMA.
While it is not disputed that the respondent was paid only TZS. 155,000/=,
however, the respondent is on record to have challenged the sum not being
sufficient having not covered transportation costs for his dependents and of his
personal effects from Kahama to Dodoma. The appellant before the CMA did not
dispute the claims of transport costs claimed by the respondent in Attachment 'A'.
That being the case, this ground of appeal deviates from being point of law to a
factual issue because the issue is on the sufficiency of the amount paid by the
appellant to the respondent.
Apparently, the adequacy or otherwise of repatriation costs was not determined
by the CMA. However, at page 163 of the record of appeal, it was addressed by
the High Court as follows:
It is apparent from the above quoted provisions that since it was established
by the CMA that the termination of the applicant was constructive then, he was
entitled to severance pay, transport and leave pay as provided for under sections
42, 43 and 44 of the ELRA. According to the termination letter (annexure 15)
dated 04/07/2013 the applicant was paid salary up to 20/07/2013, 77 leave days
earned but not taken and repatriation fee to Dodoma TZS 155 900/= in cash. It is
obvious that the applicant was not paid his severance pay, notice pay
transportation of the employee's family and his personal effects to Dodoma or
allowance for transportation and subsistence allowance for him and his family.
Failure by the CMA to order payment of these benefits to the applicant was not
515
proper and contrary to the law. Subsequently, the applicant is entitled to all the
terminal benefits that he has not been paid according to the law.
Finally, the High Court at page 197 of the record, ruled among others the
following:
(b) Travel costs for four of the applicant's dependants to
Dodoma as prayed.
(c) Costs for transport of the applicant's personal effects to
Dodoma as prayed.
In the circumstances, in the absence of any complaint that there was a mishandling
of the evidence on the matter and we found none, the sufficiency or otherwise of
the payment of repatriation costs was well addressed by the High Court and it
being a matter of fact and not of law, it cannot be entertained by the Court. Thus,
since it was determined by the High Court, it ends there and this renders the
complaint in the 3rd ground not merited and it is hereby dismissed.
Next for consideration is ground 4 whereby the appellant is faulting the High
Court in ordering that the respondent is entitled to be paid daily subsistence
allowance from the date of termination to the date of payment. It is settled law
that, the rate of subsistence allowance pending repatriation, is calculated on the
basis of daily salary of a monthly salary for the whole period the respondent awaits
payment of repatriation or travel expenses. See the case of Juma Akida Seuchago
v. SBC (Tanzania) Limited, Civil Appeal No. 7 of 2019, Attorney General v.
Ahmed Yakuti & 2 Others, Civil Appeal No. 49 of 2004.
In the instant case, as the respondent was not paid the repatriation costs in full, he
could not move to Dodoma leaving behind his dependants and personal effects in
Kahama. Thus, as correctly found by the High Court the appellant is liable to pay
the respondent the subsistence allowance pending payment in full of the
repatriation expenses. Thus, the 4th ground of appeal is bound to fail and it is
hereby dismissed.
As to the 1st and 2nd grounds, as earlier stated, the complaint is on the quantum of
compensation and parties locked horns on the variation of the CMA's award by
the High Court. We are aware that, section 40 (1) of the ELRA gives the arbitrator
and the Labour Court discretion to make award of compensation which is not less
than twelve months' remuneration. It is settled law that the discretion must be
judiciously exercised and if not, the higher court can interfere with the same.
516
In the South African case of Dr D.C. Kemp T/A Centralmed and MB Rawlins,
Case No. JA 11/06, the Labour Court of Appeal of South Africa considered the
extent to which discretion can be exercised by the Labour Court in reviewing the
decision of arbitrator's exercise of discretionary powers:
…the arbitrator or the Labour Court has a discretion to decide
on the appropriate amount. The parameters do not hinder the
choice; it merely sets the outer limits- beyond which the
arbitrator or the Labour Court may not go. Within the limits,
however, the arbitrator or the Labour Court may make any
decision which it considers to be the correct one.
.... When dealing with a discretion however ... the Court must
consider if the arbitrator or the Labour Court properly took into
account all the fact9rs and circumstances in coming to its
decision and that the decision arrived at is Justified…
Here at home, the Court considered circumstances upon which an appellate court
can interfere with the exercise of discretion of an inferior court or tribunal to be:
One, if the inferior Court misdirected itself; or two, it has acted on matters it
should not have not have acted; or three, it has failed to take into consideration
matters which it should have taken into consideration and four, in so doing,
arrived at wrong conclusion. See: Credo Siwale v. The Republic, Criminal Appeal
No. 417 of 2013 and Mbogo and Another v. Shah [1968] EA 93.
In Sodetra (Sprl) Ltd v. Mezza & Another Labour Revision No. 207 of 2008,
it was held by the High Court that:
...a reading of other sections of the Act gives a distinct

impression that the law abhors substantive unfairness more than
procedural unfairness, the remedy for the former attracts a
heavier penalty than the latter…
Subscribing to the stated proposition above, in the interpretation of section 40 (1)
(c) of the ELRA in the case of Felician Rutwaza v. World Vision Tanzania, Civil
Appeal No. 213 of 2019, the Court stated that:
We respectfully subscribe to the above interpretation, for we
think it is founded on logic and common sense; it reflects a
517
correct interpretation of the law. Under the circumstances, since
the learned Judge found the reasons for the appellant1s
termination were valid and fair, she was right in exercising her
discretion ordering lesser compensation than that awarded by
the CMA. We sustain that award.
In the case at hand, there is no contention on the substantive unfairness which
amounted to constructive termination. This, according to Rule 7(3) of the
Employment and Labour Relation Act, (Code of Good Practice) GN No. 42 of
2007 was similar to unfair termination of employment. While the arbitrator
awarded 18 months' compensation the High Court reversed it and awarded 36
months. The test here is whether the discretion was judiciously exercised. At page
99 of the record of appeal the CMA treated it as follows:
Hoja ya mwisho, ni nafuu ipi inastahili kwa kila upande. Mlalamikaji kwa mujibu
wa CMA F. 1 aliomba kulipwa fidia ya mishahara ya miezi 36. Kama hoja
iliyotangulia ilivyojibiwa na kubalni kuwa mlalamikiwa alifanya ajira ya
mlalamikaji kushindwa kuvumilika na hivyo kupelekea mlalamikaji kuacha kazi.
Kwa msingi huo ninaamuru kuwa mlalamikiwa amlipe m/a/amikaji mishahara ya
miezi kumi na nane (18) kwa mujibu k1fungu cha 40(1) (c) cha Sheria ya Ajira
na Mahusiano Kazini Na. 6 ya 2004.
40. (1) kama Muamuzi au Mahakama ya Kazi itath1bitisha
kuwa uachishwaji kazi si halali, Muamuzi au Mahakama
inaweza kumwamuru mwajiri: -
(c) kumlipa mwajiriwa fidia ya ujira usiopungua miezi kumi
na mbili. (Msisitizo umeongezwa).
At page 165 of the record of appeal, apart from the High Court acknowledging
the intolerable working conditions caused by the appellant, it faulted the CMA in
granting 18 months' salary as compensation and made the following finding at
page 165 of the record of appeal as follows:
...the applicant claimed to have suffered a lot because his
employment was cut short, he suffered health problems and
his objectives in life and the education of his children were
shaken. The issuance of compensation is pegged oh the fact
that the sum of money would be awarded would put a party
who has been injured or suffered in the same position as he
518
would have been if he had not sustained the wrong which he
is now getting compensation. ...
We agree with the appellant's counsel that reasons given by the learned High
Court were indeed extraneous and were in relation to the post termination which
was never addressed be it at the CMA or the High Court. It was incumbent on the
learned High Court in revising the decision of the CMA to consider if the
arbitrator took into account all factors and circumstances in arriving at its decision
and if the decision was justified. We are fortified in that regard, because sitting in
revision, the High Court was required to consider if the arbitrator made a proper
evaluation of all the facts and circumstances and whether or not the decision was
judicially a correct one.
In the present matter, we have gathered that, not all the factors and circumstances
were considered by the arbitrator in arriving at the compensation payable to the
respondent. The appellant’s deliberate denial of promotion and salary increments
were not considered by the arbitrator though listed as among the concerns which
adversely affected the respondent in this case of substantive unfairness whose
remedy attracts a heavier penalty than procedural unfairness. In this regard,
besides the extraneous reasons she gave which as earlier stated which we do not
agree, since the learned Judge found the respondent's termination was
substantively unfair, she properly exercised her discretion ordering greater
compensation than that awarded by the CMA. We thus uphold the verdict of the
High Court that the respondent be paid compensation for thirty-six (36) months'
remuneration for the constructive termination.
519
Appeal allowed
PASCHAL BANDIHO v. ARUSHA URBAN WATER SUPPLY AND

SEWERAGE AUTHORITY (AUWSA)
AT ARUSHA
(Appeal from the decision of the High Court of Tanzania (Labour Division) at
Arusha, Nyerere, J., dated 25th July, 2016 in Revision No. 76 of 2015)
Jurisdiction – Court of Appeal of Tanzania – Rules governing appeals to the Court
of Appeal.
Termination of employment – dishonest – whether it may attract termination of
employment.
Termination of employment – Investigations prior to hearing – charge formulated
without conducting investigation – whether rule 13 (1) of the Code of Good
Practice Rules, 2007 was contravened
It follows then that an investigation prior to a hearing is variable. The process of

investigation depends on each institutional internal mechanism but central to that
is that an employee should be afforded an opportunity to be heard prior dismissal.
Termination of employment - The appellant was employed as a Construction
Artisan Grade III by the respondent. His employment with the respondent lasted
for a period of about 13 years. His employment was terminated by the respondent
on grounds of misconduct/gross dishonesty. He filed a complaint to the CMA. The
CMA was satisfied that there was a valid reason for termination of appellant's
employment. Dissatisfied with the award, the appellant filed an application for
revision in the High Court. After hearing the parties, the High Court concurred
with the CMA's award that the termination of employment of the appellant was
substantially fair and that the respondent to a greater extent complied with the
procedure save for a minor infraction where there was no proof of service of the
minutes of the meeting to the appellant as he did not sign them. Accordingly, the
High Court dismissed the application by upholding the CMA's award. Still
aggrieved, the appellant filed the present appeal.
Held: i) Section 57 of LIA confers and restricts the jurisdiction of this Court,
appeal to base on point (s) of law only against the decision arising from the High
Court, Labour Division. , section 57 of LIA confers and restricts the jurisdiction
520
of this Court as it requires an intended appellant to appeal to the Court on point (s)
of law only against the decision arising from the High Court, Labour Division
ii) In the eyes of law, dishonesty is a misconduct which is a serious disciplinary
offence which attracts termination.
iii) An investigation prior to a hearing is variable. The process of investigation
depends on each institutional internal mechanisms but central to that is that an
employee should be afforded an opportunity to be heard prior dismissal.
Appeal dismissed
Cases referred to
(1) Tanzania Revenue Authority v. Tango Transport Company Ltd, Civil
(2) National Bank of Commerce Limited v. National Chicks Corporation
Limited and 4 Others, Civil Appeal No. 129 of 2015
(3) Tanzania Teachers Union v. The Chief Secretary and 3 Others, Civil Appeal
No. 96 of 2012
(4) Atlas Copco Tanzania Limited v. Commissioner General, Tanzania Revenue
Authority, Civil Appeal No. 167 of 2019
(5) Kilombero Sugar Company Limited v. Commissioner General (TRA), Civil
(6) CMA - CGM Tanzania Limited v. Justine Baruti, Civil Appeal No. 23 of
2020

Practice) Rules, G.N. No. 42 of 2007
(2) Section 57 of the Labour Institutions Act,[Cap. 300 R.E. 2019]
(3) Section 91 (2) (b) of the Employment and Labour Relation Act, [Cap 366
R.E. 2019]
(4) Rule 12 (3) (a) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007
(5) Section 37 (2) (a), (b) and (c) of the Employment and Labour Relation Act,
[Cap 366 R.E. 2019]
521
Ms. Machoke, Principal State Attorney, Ms. Kaaya, Senior State Attorney and Mr.
Musseti, State Attorney, for Respondent

SEHEL, J.A.: The appellant in this appeal was an employee of Arusha Urban
Water Supply and Sewerage Authority (AUWSA) (the respondent). He was
employed on 1st July, 1999 as a Construction Artisan Grade III. Among of his basic
duties were to visit sites, conduct survey, prepare and sign cost estimates forms for
customers in need of new water connections. His employment with the respondent
was for a period of about 13 years until termination on 28th August, 2012 on
grounds of misconduct/gross dishonesty. He was alleged to have forged a drawing
for the new water connection having reported less measurements of the water pipe
of 80 metres instead of 220 metres for a customer, one Paul Minja (PW2); diverted
a route for the water connection on PW2's premises; sourced and used sub-standard
materials to construct a new route measuring 140 metres and that, he connected
water to a customer, one Augustina Shawshi Manda in Kiranyi Ward which was a
restricted area and outside his area of operation. As he was not satisfied with both
the procedure and reasons for his termination, he filed a complaint to the CMA
sought and to be paid compensation of 12 months' salary for unfair termination
and severance allowance. He also sought to be issued with a certificate of service.
At the end of the hearing, the CMA was satisfied that there was a valid reason for
termination of appellant's employment, thus, the termination was substantially fair.
Regarding the procedure, the CMA noted that the respondent did not serve and
cause the appellant to sign the minutes of the disciplinary hearing. However, the
CMA held that the omission did not go to the root of the procedure so as to vitiate
it. At the end, it awarded the appellant one months' salary for employer's failure to
cause the applicant to sign the minutes of the disciplinary hearing.
Dissatisfied with the award, the appellant filed an application for revision in the
High Court. After hearing the parties, the High Court concurred with the CMA's
Award that the termination of employment of the appellant was substantially fair
and that the respondent to a greater extent complied with the procedure save for a
minor infraction where there was no proof of service of the minutes of the meeting
to the appellant as he did not sign them. Accordingly, the High Court dismissed
the application by upholding the CMA's award. Still aggrieved, the appellant filed
the present appeal. In his memorandum of appeal, the appellant listed the following
six grounds:
522
1. That, the learned judge erred in law and fact by failing to set
aside an arbitrators award which was improperly procured with
contradictory evidence.
2. That, the learned judge and the trial arbitrator erred in law and
fact by failing to recognize that the reasons for termination of
employment was both substantively and procedurally unfair.
fact by assuming that the documentary evidence and facts by the
respondent were true while there was no proof on misconduct.
4. That, the learned judge erred in law and fact by ruling in favour
of the respondent that the inconsistencies of the witnesses/'
arguments/' documentary evidence and lack of corroboration
were not sufficient to overturn the findings of fact.
5. That, the learned judge erred in law and fact by violating the
principle of natural justice as it was put to her attention that the
respondent had been a judge of his own case in that he was a
complainant, prosecutor/charging the appellant, judge and
suspender.
fact by failing to recognize that the punishment imposed by the
respondent was exorbitant, that is, given the nature of the
appellants job and circumstances the misconduct occurred could
not have attracted termination of employment.
At the hearing of the appeal, the appellant appeared in person, unrepresented

whereas the respondent was represented by Ms. Stella Machoke, learned Principal
State Attorney assisted Ms. Jeniffer Kaaya, learned Senior State Attorney and Mr.
Peter Musseti, learned State Attorney. Both parties had earlier on filed written
submissions in support and in opposition of the appeal, respectively which they
adopted during the hearing of the appeal.
Before going into the merits of the appeal, we wish to start with a point of law
addressed to us by the learned Senior State Attorney on the legality of some of the
grounds in the memorandum of appeal.
Mr. Musseti argued that, in terms of section 57 of the Labour Institutions Act, Cap.
300 R.E. 2019 (henceforth “the LIA”), the Court has no jurisdiction to hear and
determine grounds 1, 3 and 4 which raise issues of fact and not law. For that reason,
he urged the Court to disregard the grounds. The Appellant, being a layperson, did
not have anything to reply. He left the issue to be determined by the Court as it
deems fit.
It be noted that there is a plethora of authorities that the jurisdiction of this Court
is conferred by statute. Among them are Tanzania Revenue Authority v. Tango
523
Transport Company Ltd, Civil Appeal No. 84 of 2009 and National Bank of
Commerce Limited v. National Chicks Corporation Limited and 4 Others, Civil
Appeal No. 129 of 2015 (both unreported). As rightly submitted by the learned
Senior State Attorney, section 57 of LIA confers and restricts the jurisdiction of
this Court as it requires an intended appellant to appeal to the Court on point (s) of
law only against the decision arising from the High Court, Labour Division - see
the case of Tanzania Teachers Union v. The Chief Secretary and 3 Others, Civil
In the case of CMA - CGM Tanzania Limited v. Justine Baruti, Civil Appeal No.
23 of 2020 (unreported) the Court defined as to what constitutes a point of law. In
that appeal, preliminary points of objection were raised on the competency of the
appeal. Among the points of law raised was that, the three grounds of appeal
advanced by the appellant involved issues of fact and not law, thus, contravened
section 57 of the LIA. The Court adopted and applied the definition of the term
"matters involving questions of law only" as it appears in section 25 (2) of the Tax
Revenue Appeals Act, Cap. 408 R.E. 2006 (now R.E. 2019). The definition was
given in the cases of Atlas Copco Tanzania Limited v. Commissioner General,
Tanzania Revenue Authority, Civil Appeal No. 167 of 2019 and Kilombero Sugar
Company Limited v. Commissioner General (TRA), Civil Appeal No. 14 of 2007
(both unreported).
For instance, in the case of Kilombero Sugar Company Limited (supra) defined the
term "matters involving questions of law only”, as follows:
Thus, for the purpose of section 25 (2) of the TRAA, we
think, a question of law means any of the following: first, an
issue on the interpretation of a provision of the Constitution,
a statute, subsidiary legislation or any legal doctrine on tax
application by the Tribunal of a provision of the
Constitution, a statute, subsidiary legislation or any legal
doctrine to the evidence on record. Finally, a question on a
conclusion arrived at by the Tribunal where there is failure
to evaluate the evidence or if there is no evidence to support
it or that it is so perverse or so illegal that no reasonable
tribunal would arrive at it.
Similarly, in this appeal, we adopt the same and apply it to the grounds of appeal
complained of. We start with the 1st ground that faults the Judge for her failure to
set aside the arbitrator’s award which was improperly procured, the appellant in
his written submission argued that it was improperly procured because there was
contradiction in evidence thus, the High Court ought to have exercise its powers
judiciously as conferred upon it under section 91 (2) (b) of the Employment and
524
Labour Relation Act, [Cap 366 R.E. 2019] (henceforth "the ELRA") by setting it
aside. This ground of appeal invites the Court to re-assess the evidence which the
law prohibits. Thus, in terms of the provisions of section 57 of the LIA, the Court
has no jurisdiction to determine the first ground. Nevertheless, when determining
other grounds of appeal, we shall demonstrate as to whether the High Court
judiciously exercised the revisional powers.
Regarding the 3rd and 4th grounds of appeal, reading through them and having gone
through the appellant's submission we find that they do not fit squarely within the
ambit of section 57 of the LIA because they both call upon the Court to re-assess
and weigh the evidence of DW1, DW2 and Exhibit D1. As the complaint is not on
misapprehension of the evidence be it by CMA or the High Court, we shall thus
not consider them.
We turn to the remaining grounds of appeal that raise points of law which this
Court has jurisdiction to determine.
We shall start with the 2nd ground of appeal where the appellant complained that
the reasons for his termination were substantially and procedurally unfair.
Elaborating on this ground, the appellant submitted that he was terminated on
ground of dishonesty/misconduct that; he forged a drawing of new water
connection for PW2 by reporting less measurements of the water pipes of 80
metres instead of 220 metres and formed a water connection for a customer, one
Augustina Shawshi Manda in Kiranyi Ward which is a restricted area and outside
his area of operation. He argued that there was no proof on the allegations as his
drawings for PW2 had an estimate of 80 meters. It was his submission that, if there
was an addition of 220 meters, it was done by an engineer who went to lay down
pipes without following his drawings. In an attempt to fortify his submission, he
referred us to the evidence of DW2 who testified that the work of laying down
pipes is done by the engineer who is required to follow the drawings prepared by
the AUWSA surveyor. He also referred us to the evidence of PW2 who testified
that he was told by the casual labourers that the drawing was changed by AUWSA
engineers after his neighbour refused wayleave. Regarding connection to Mr.
Augustina Shawshi Manda, he submitted that the cost estimates form was
approved by his seniors and connection was done, thus, he did not commit any
offence.
It was responded by Mr. Musseti that there were valid reasons for the termination
of appellant's employment which were in accordance with section 37 of the ELRA
read together with regulations 2.10.7 (iv) (b), (f) and (h) of the Arusha Urban
Water Supply and Sewerage Authority Staff Regulations, 2006 (AUWSA Staff
Regulations) that provide for the grounds upon which an employee may be
summarily dismissed. He contended that the appellant was charged with the
offence of gross dishonesty following a recommendation by an investigating
525
committee which on 19th April, 2012 issued its report and recommended for action
to be taken against all perpetrators, Exh. D1. He further submitted that the
respondent’s witnesses whom their evidence was found to be consistent and well
supported by both the CMA and the High Court sufficiently proved the charged
offences of reporting less measurements to the premises of PW2 and the
connection of water services to the restricted area in the premises of Augustina
Shawshi Manda. With that submission, he urged the Court to find that the
complaint has no merit.
The appellant simply re-joined that the respondent is misleading the facts and
reiterated his earlier submission.
After a careful consideration of the written submissions and oral submissions of
the parties, we find that the central issue for our determination on this ground is
whether there was a valid and sound reason to terminate the appellant's
employment. Section 39 of the ELRA requires an employer to prove that the
termination of an employee was fair. Termination is considered unfair if the
employer fails to prove that: (a) the reason for termination is valid; (b) such reason
related to the employee's conduct, capacity or compatibility or based on the
operational requirements of the employer is fair; and (c) the employment was
terminated in accordance with a fair procedure - see: section 37 (2) (a), (b) and (c)
of the ELRA. As to the standard of proof, rule 9 (3) and (5) of the Code of Good
Practice requires an employer to prove, on balance of probabilities, that the reason
was not only fair but sufficiently serious to justify termination.
It is in common ground that the appellant was charged for contravening regulation
2.10.7 (iv) (b) (f) and (h) of the AUWSA Staff Regulations which attracts a
punishment of summary dismissal. He was also charged with gross dishonesty
under rule 12 (3) (a) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N. No. 42 of 2007 (henceforth "the Code of Good Practice").
Generally, regulation 2.10.7 (iv) of the Code of Good Practice which the appellant
was charged with enumerates numerous grounds upon which a summary dismissal
may be effected. For the case of the appellant, the grounds were: - (b) he was
involved in illegal dealings with the customers of the Authority, which create
conflicts with the Authority, (f) he did an act which is forbidden by the Authority
for reason of safety or liabilities to the Authority and (h) he committed acts, which
were against the interest of the Authority.
In this appeal, the appellant does not dispute the fact that he prepared the drawing
which shows that the distance from PW2's premises to the main pipeline was 80
meters. He further does not dispute that he created a water connection for Mr.
Augustina Shawshi Manda. His main defence was that it was the engineers who
changed the route for PW2's to be connected with water when they went to dig
trenches and lay down pipes and that the application of Mr. Manda was approved
526
by his seniors. With such a defence, the employer had to prove that it was the
appellant and not the engineer who changed the route and made water connection
to PW2 and Mr. Augustina Shawshi Manda.
In order to be satisfied as to whether the employer proved the allegations against
the appellant, we revisited the record of appeal and noted that the respondent called
a total of four witnesses, namely; Happy God Matoi (DWl), a human resources
manager; Amza Said (DW2), a water technician; Mr. Eliud Eliapenda Mbesere
(DW3), the engineer and Tumaini Kundi (DW4), a casual labour and tendered five
exhibits which are investigation report (Exh. D1), charges (Exh. D2 and D3),
minutes of the disciplinary committee (Exh. D4) and minutes of the Board of
Directors (Exh. D5).
It was the evidence of DW1 that while in office, the appellant received PW2 then
he went to survey PW2's area, prepared the drawing which shows the measurement
of 80 metres and filled the cost estimates form. However, when, DW3 went to dig
the trench and lay down pipes, he was stopped by PW2's neighbour from passing
the pipeline over the plot.
DW3 testified that he only placed pipes up to 80 metres and then went to Mr.
Hamza Mushi, the immediate supervisor of the appellant to report that there was
60 metres deficit for the water to be connected. Upon receipt of such report, Mr.
Mushi halted the engineer from continuing working on the site so that the issue
could be investigated. However, after a week and a half, DW2 found casual
labourers continuing with the work of connecting the remaining 140 metres. When
asked as to who engaged them, they replied that it was the appellant. DW2 further
told the CMA that she investigated the matter and found out that the pipes used to
connect the 140 metres were not procured from the respondent and they were
below AUWSA's standards. A report of such investigation was admitted in
evidence as Exh. Dl. Among the findings of the investigation were that there was
dishonesty on the drawings made by the surveyor, there was a diverted route
measuring 220 metres, and materials used to construct the extra 140 meters on the
diverted route were procured outside AUWSA system, and they were sub-
standard.
The evidence of DW4 was that he was aware that the respondent prohibited to
make new connection in Elikirei-Kinyari area around Arusha- Moshi Road.
However, with the instructions from the appellant and having been shown cost
estimates form, they went to Kinyari area and made water connection to Mr.
Augustino Shawshi Manda. He further told the CMA that, although the cost
estimate form indicated the area to be worked upon was Elerai as approved by the
technical manager and planning manager, they went to work in Kiranyi Ward on
the instructions of the appellant. The evidence of DW4 is further supported by Exh.
D5 where at page 83 of the record of appeal, last paragraph of 6.2 reads:
527
Tarehe 29/3/2012 aliandaliwa makadirio (cost estimates)
yaliyoonesha eneo la Sakina kata ya Elerai na baadaye
ikaidhinishwa na viongozi husika na taratibu zinavyotaka.
Literally translating that:
On 29th March 2012 the cost estimates for Sakina area in
Elerai Ward was prepared and approved by responsible
people and thereafter other procedures followed.
From that clear evidence coming from DW1, DW2, DW3, DW4 and Exh. D5, we
are satisfied, just like the CMA and the High Court, pursuant to regulation 2.10.7
(iv)(b) (f) and (h) of the AUWSA Staff Regulations, there were valid reasons
warranting punishment of summary dismissal as the appellant's acts were against
the interest of the respondent, being the Authority mandated to supply water in the
vicinity.
With respect, we find that the evidence of DW2 supported the respondent's case
because it was the case of the respondent that engineers of AUWSA are
responsible in laying down pipes but the appellant sourced his own casual
labourers like DW4 and instructed them to lay down pipes which is contrary to his
line of duty. As for the evidence of PW2, we revisited his evidence and we entirely
agree with the observation of the CMA that when this witness was cross-examined,
he said he was not at the site, and he was not sure as to whether the casual labourers
were sent by AUWSA. We therefore find that this complaint concerning unfair
reasons is unfounded. We dismiss it.
Having found that there were valid reasons, let us examine whether the procedure
was fair in terminating the appellant's employment. The appellant's submission on
this issue was on three-fold: one, the charge regarding connection to Mr.
Augustina Shawshi Manda was preferred contrary to rule 13 (1) of the Code of
Good Practice as it was made without first conducting an investigation. Two, the
respondent was a judge of his own case because it was the Managing Director who
appointed members of the investigating team and at the same time, he chaired the
Disciplinary Committee meeting which fired him. Three, the recommendation
from the Management to the Board of Directors was made in contravention of rule
48 (1) (3) of the Public Service Regulations, G.N. 168 of 2003 as it was forwarded
with the form and nature of punishment to be imposed on the appellant.
In reply, Mr. Musseti prefaced his submission by arguing that the respondent
substantially complied with all the procedures save to the fact that the appellant
was not supplied and caused to sign the minutes of the disciplinary hearing. He
contended that, prior to the charge being preferred to the appellant, an investigation
was conducted (Exh. Dl). After the investigation, the appellant was formally
charged (Exh. D2 and D3) and the same was served upon the appellant for him to
528
respond which he did. After receipt of his response, the disciplinary committee
chaired by the Managing Director conducted an inquiry and this was done in
accordance with regulations 7.2.1.3 and 7.22 of AUWSA Staff Regulations that,
the record of proceedings and the report of the disciplinary committee was
forwarded to the disciplinary authority which for the case of the appellant was the
Board of Directors as per the provisions of regulations 7.2.1.1 and 7.2.2.2 of
AUWSA Staff Regulations. Mr. Musseti further submitted that at the disciplinary
committee and the Board of Directors, the appellant was given a right to be heard
since he was present, cross-examined witnesses and defended himself. He argued
that the failure to serve and cause the appellant to sign the minutes of the
disciplinary committee cannot invalidate the entire process. He thus urged the
Court to dismiss the ground of appeal.
The appellant re-joined that rule 13 (1) and (4) of the Code of Good Practice was
not complied with in that no investigation was done in respect of the charge that
he formed a new water connection in a restricted area and that the Managing
Director who constituted the investigation team also chaired the hearing in the
disciplinary committee.
From the parties' submissions, both oral and written, we gather that the appellant's
complaint on procedure is on three aspects. First, he complained that the charge
concerning the formation of a new water connection preferred against him was
made without conducting an investigation. He submitted that was in contravention
to rule 13 (1) of the Code of Good Practice which provides that:
The employer shall conduct an investigation to ascertain
Luckily, the above rule was lucidly considered in the case of Severo Mutegeki and
Another v. Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma
(DUWASA), Civil Appeal No. 343 of 2019. In that appeal, the appellants were
dismissed from their employment without being formally charged. Thus, when
deliberating as to whether the procedure regulating lawful termination was
followed, the Court having cited in full rule 13 of the Code of Good Practice stated:
In terms of sub-rule (1) what entails an investigation to
ascertain whether there are grounds of the hearing includes as
well exhausting the prescribed internal measures in the
Employment Institution regulating the operational aspects
which are binding on both the employees and the employer.
Yet, in the Republic of South Africa in the case of Avril Elizabeth Home for the
Mentally Handicapped v CCMA [2006] ZALC 44 sourced from
https://www.saflii.org/za/cases/ZALC/2006/44.html when deliberating on the
529
compliance of the procedure for fair termination as provided in the Labour
Relations Act, 1995 under item 4 of schedule 8 on Code of Good Practice:
Dismissal, the Labour Court echoed that item 4, which is almost similar to rule 13
of the Code of Good Practice, requires employers to afford employees a fair
chance of hearing before a decision is taken and nothing more. It said:
This conception of the right to a hearing prior to dismissal ...
is reflected in the Code. When the Code refers to an
opportunity that must be given by the employer to the
employee to state a case in response to any allegations made
against that employee/ which need not be a formal enquiry it
means no more than that there should be dialogue and an
opportunity for reflection before any decision is taken to
dismiss. In the absence of exceptional circumstances/ the
substantive content of this process as defined by Item 4 of the
Code requires the conducting of an investigation notification
to the employee of any allegations that may flow from that
investigation and an opportunity within a reasonable time/ to
prepare a response to the employer's allegations with the
assistance of a trade union representative or fellow employee.
The employer should then communicate the decision taken
and preferably communicate this in writing.
It follows then that an investigation prior to a hearing is variable. The process of
investigation depends on each institutional internal mechanisms but central to that
is that an employee should be afforded an opportunity to be heard prior dismissal.
In the present appeal, we note that on 19th April, 2012, an investigation was
conducted. The reason for such kind of investigation is clearly reflected in the first
paragraph of Exh. D1 that reads:
Uchunguzi huu umetokana na agizo la Mkurugenzi Mtendaji
baada ya kusikia kuwa kuna vifaa ambayo havina ubora
katika kuwaunganishia wateja maji.
The above literally translates that:
The present investigation is conducted following the
Managing Directors order after he had received complaints
concerning sub-standard materials used in connecting water
to customers.
It is in record that after the investigation, on 24th April, 2012, the appellant was
charged with forging a drawing by reporting less measurement of 80 metres
instead of 220 metres, diverting a route in order to connect water to the premises
of PW2 and for sourcing and using sub-standard materials. Again, on 30th May,
530
2012, the appellant was charged with forming a new water connection in a
restricted area. Therefore, given the stated aim of conducting investigation and
going by the sequency of events, we are satisfied that he was formally charged
after investigation. We find that the appellant's complaint has no merit. We dismiss
it.
The second argument by the appellant on the procedure is that, the Managing
Director was the judge of his own cause. It is pertinent to point out here that this
is also the appellant's fifth ground of appeal. With respect, we do not find
substance in this complaint. Although we agree with the appellant that the
Managing Director chaired the disciplinary hearing, he chaired the same in
accordance with the institutional internal procedures as provided under regulations
7.2.1.3 and 7.22.3 of AUWSA Staff Regulations that the disciplinary committee
shall comprise of the Managing Director as chair, Managers, the head of
department/section under whom the accused employee works and three members
of staff selected by the Managing Director. Besides, as rightly submitted by Mr.
Musseti, it was the Board of Directors that dismissed the appellant from his
employment and not the Managing Director. Thus, we hold that this complaint and
the fifth ground of appeal are baseless and we dismiss them.
Lastly on the procedure, the appellant complained that the recommendation to the
Board of Directors contravened rule 48 (1) and (3) of the Public Service
Regulations. This should not take much of our time because the law cited by the
appellant is not applicable to the respondent. The appellant is much aware that the
respondent has in place its own regulations, that is, AUWSA Staff Regulations. As
the appellant's complaint is not pegged on AUWSA Staff Regulations, we are
satisfied that the complaint is misconceived. We, as well, dismiss it.
In the end, we find that the appellant's termination of employment was
substantially and procedurally fair. Accordingly, we dismiss the second and fifth
grounds of appeal.
Lastly, the sixth ground of appeal on the severity of punishment. The appellant
submitted that for the past 13 years, he had a good record until when he was
charged with dishonesty. He therefore argued that the respondent ought to have
exercised lenience. Mr. Musseti briefly replied that given the nature of the offence
which the appellant was charged with, the punishment imposed was in accordance
with regulation 7. 10.7 (iv) (b) (f) and (h) of the AUWSA Staff Regulations and
rule 12 (3) (a) of the Code of Good Practice.
The central issue on this ground is whether the punishment was severe. We have
earlier on stated that the appellant was charged for contravening regulation 2.10.7
(iv) of AUWSA Staff Regulations and rule 12 of 2007 (3) (a) and (f) of the Code
of Good Practice. These provisions of the laws require the respondent to terminate
the employment of the appellant after being satisfied that the appellant has
531
committed the charged offences. Generally, these provisions of the law do not
provide for the alternative punishments such as a warning. They call for summary
dismissal. In that respect, in the eyes of law, dishonesty is a misconduct which is
a serious disciplinary offence which attracts termination. For that reason, having
found that the appellant’s employment was substantially and procedurally fair, we
are satisfied that the punishment imposed on the appellant by the respondent was
justified. Accordingly, we find that the sixth ground is devoid of merit.
From what we have endeavoured to discuss we find that the High Court judiciously
exercised its revisional powers. We thus, find the appeal is devoid of merit,
accordingly, dismiss it. We make no order as to costs because the appeal arose
from a labour dispute.
Appeal dismissed
PATRICK JOHN BUTABILE v. BAKHRESA FOOD PRODUCTS

LTD
AT DAR ES SALAAM
(Appeal against a refusal for extension of time within which to appeal against
judgment of the High Court of Tanzania (Labour Division) at Dar es Salaam,
Muruke, J., dated 31st October, 2018 in Revision No. 290 of 2017).
Application for extension of time – Applicant went missing for four years after
termination but alleges technical delays in filing the application for condonation
– whether the delay was inordinate and whether the appellant failed to assign
sufficient grounds for extension of time - Rule 10(2) of the Labour Institutions
(Mediation and Arbitration) Rules, 2007
The appellant was employed by the respondent as a driver, but for some reasons
his employment was terminated by the respondent, but he did not refer his unfair
termination claim to the CMA's until some four years later. He filed an application
for condonation which was rejected by the CMA. He was unhappy. He referred
the decision to the High Court for revision but was unsuccessful, hence the present
appeal.
Held: i) For the court to grant or refuse extension depends on its judiciously
exercised discretion, the bottom line being whether sufficient cause was shown.
532
ii) However, slight the delay might be, unless, at least on the balance of
probabilities the party justifies it, the blanket plea of technical delay counts for
nothing leave alone the alleged, but undisclosed ‘illegalities’.
Appeal dismissed
Cases referred to
(1) Tanga Cement Co. Ltd v. lumanne D. Masangwa & Another, Civil
(2) Julius Francis Ndyanabo v. The Attorney General [2004] T.L.R. 14
(3) Esanyi v. Solonki [1968] EA 218
(4) Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002
(5) Osward Masatu Mwizarubi v. Tanzania Fishing Processing Ltd, Civil
(6) Lyamuya Construction Company Limited v. Board of Registered Trustees of
Young (7) Women's Christian Association of Tanzania, Civil Application No. 2
of 2010
(7) Bariki Israel v. R., Criminal Application No. 4 of 2011
(8) Sebastian Ndaula v. Grace Rwamafa, Civil Application No. 4 of 2014
2007
(2) Rules 106(7) and (12) of the Tanzania Court of Appeal Rules, 2009
Appellant in person
Mr Mushi, for Respondent

RUMANYIKA, J.A.: The appeal arises from a judgment and decree of the High
Court (Muruke, J.) dated 31/10/2018, upholding a refusal of extension of time by
the Commission for Mediation and Arbitration for Dar es Salaam at Dar es Salaam
(the CMA) to Patrick John Butabile (the appellant). The appellant sought to
533
challenge the termination of his employment by the respondent but he was out of
time, hence his application to the CMA for condonation of the delay but all in vain.
Briefly, the appellant was employed by Bakhresa Food Products Ltd (the
respondent) as driver but for some reasons not necessarily subject of this appeal,
his service ended on 24/10/2013 but he did not refer his unfair termination claim
to the CMA's until as late as 13/01/2017. He was four years late and contrary to
rule 10(2) of the Labour Institutions (Mediation and Arbitration) Rules, 2007 (the
Mediation Rules). As said earlier, he applied for a requisite condonation but the
CMA refused him one. He was unhappy. He referred the decision to the High Court
for revisal but was unsuccessful, hence the present four grounds' memorandum of
appeal.
We wish to express our concern here, that the memorandum of appeal is so
argumentative and discursive that a reader could hardly comprehend its essence.
Without missing out a point however, we think the memorandum may boil down
to three short points; (i) That the Judge ignored the points of illegalities raised by
him (ii) That the Judge did not hear him fairly (iii) That the Judge erred in not
holding that the appellant's delay was caused by the respondent.
When the appeal was called on 11/02/2022 for hearing, only Mr. Evold Mushi,
learned counsel appeared assisted by Ms. Rose Mtesigwa also learned counsel for
the respondent.
We think it is necessary also here to state that as the learned counsel were ready
for hearing, one Mr. John Butabile also in attendance he introduced himself as the
appellant's father. With leave and the court's indulgence he reported that the
appellant, his son was duly served but he was on duty caught up at Geita and could
not get his employer’s permission. The father asked for adjournment. In the
beginning, it seems Mr. Evold Mushi would not have minded of whatever the court
ordered under the circumstances. However, as, pursuant to Rules 106(7) and (12)
of the Tanzania Court of Appeal Rules, 2009 we had the parties’ written
submissions also on record, and we drew it to his attention, on a second thought
Mr. Mushi agreed to the hearing proceeding under Rule 112(4) of the Rules,
therefore the appellant was considered to have appeared.
In his fifteen pages' written submissions, the appellant argued that had the Judge
considered the illegalities that tainted his employment contract and the fact that
the reason for termination was unfair, she would not have failed to exercise her
discretion and grant him extension of time. To support his argument, he cited this
court's decision in the case of Tanga Cement Co. Ltd v. lumanne D. Masangwa &
Another, Civil Application No. 6 of 2001 (unreported). Further, he argued that the
respondent had kept him back for such a relatively long time waiting to be assigned
a vehicle to drive only to learn that it was empty promises and the contract was
fictitious hence the delay. He charged that the Judge exhibited bias and
534
overreliance on legal technicalities, henceforth he was not afforded a fair hearing.
Citing the case of Julius Francis Ndyanabo v. The Attorney General [2004] T.L.R.
14, the appellant added that by so doing, the Judge frustrated meritorious
determination of the case and she vitiated the proceedings. He cited the case of
Esanyi v. Solonki [1968] EA 218. Additionally, he said that at first, on 13/01/2017
he lodged a similar Revision Application No. 290 of 2017 for condonation which
was dully served upon the respondent through Registered Mail No.
R.D.034330108 but it was dismissed for being time barred.
On his part, Mr. Mushi submitted that just as, between them the appellant and the
respondent had an employment contract of a fixed term of one year running from
25/10/2012 - 24/10/2013 inclusive of the dates, for reasons known to the appellant
the latter disappeared and resurfaced on 20/02/2017, which was four years later.
As, for obvious reasons he found no more room for him, it appears counting from
24/10/2013 the appellant lodged an application for condonation, along with a labor
cause on 11/01/2017 but the CMA dismissed it. Then the appellant referred it to
the High Court but again the latter refused him extension of time. He is unhappy,
hence the appeal.
The issue is, like the CMA considered in refusing him extension of time, whether
the Judge exercised his discretion properly.
Rule 10(2) of the Mediation Rules mandatorily provides for sixty days for the
aggrieved employer to institute a labour dispute in the CMA. It read as follows:
Rule 10 (2)-AII other disputes must be referred to the
Commission within sixty days from the date when the dispute
raised.
It is undisputed that for some reasons from October, 2013 the appellant got missing
at work until four years when he resurfaced on 20/02/2017. Assuming, as alleged
that the appellant was terminated by the respondent, the period of his absence was
undeniably that long far beyond the limitation period of sixty days from the day of
termination. Knowing that he was time barred, he applied for extension of time
but, like the CMA's did, the Judge also found that the delay was inordinate as the
appellant had failed to assign sufficient grounds for extension of time.
In its conclusion at page 46 of the records, the CMA held as hereunder quoted:
... ni jambo la kushangaza mfanyakazi anapewa mkataba
halafu hautumikii ule mkataba mpaka unafika mwisho wake
baada ya mwaka mmoja, baada ya hapo anakaa tena miaka (4
) minne ndipo anakuja Tume kuomba apewe nafasi ya
kusikilizwa, ni kweli Rule 31 ya GN 64 ya mwaka 2007,
inaipa Tume uwezo wa kuruhusu migogoro inayokuja Tume
nje ya muda kusiki/izwa lakini ni pale tu ambapo kuna sababu
535
za msingi za kuchelewa huko, katika shauri hili mleta maombi
ameshindwa kuishawishi Tume…
The above text in Swahili means that the Arbitrator found that it was not
imaginable for the appellant who never reported at work until his one year fixed
term employment contract had lapsed, yet, without good cause he did not institute
a labour dispute until four years later.
Upholding the CMA's decision, but having listed the criteria set forth under Rule
11 (3) (a) of the GN for granting extension of time, more importantly on the degree
of lateness and the reasons for the lateness, the learned judge was satisfied that the
delay was inordinate and concluded as quoted hereunder:
The applicant failed to account for each day of delay without
sufficient reason for delay for CMA to grant the extension of
time from when the contract ended in 2013 to 2017 when he
filed the application for condonation…
The central issue is whether the refusal of condonation by the CMA as upheld the
High Court was proper.
At least the parties are at one that contrary to Rule 10 (2) of the GN which sets
sixty days’ limit, it took the appellant more than four years to lodge his claim after
the date of termination of the employment contract.
For the court to grant or refuse extension, of course depending on its judiciously
exercised discretion, the bottom line is sufficient cause as we said also in the case
of Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002
(unreported). We are aware, that as to what constitutes “a sufficient cause” there
is no clear and short cut answer. A number of times, for instance in the case of
Osward Masatu Mwizarubi v. Tanzania Fishing Processing Ltd, Civil Application
No. 13 of 2010 (unreported), we defined it as follows:
What constitutes good cause cannot be laid down by any hard
and fast rules. The term “good cause” is a relative one and is
dependent upon the party seeking extension of time to
provide the relevant material in order to move the court to
exercise its discretion.
See also the case of Lyamuya Construction Company Limited v. Board of
Registered Trustees of Young Women's Christian Association of Tanzania, Civil
Application No. 2 of 2010.
In order to fault the Judge, it was incumbent upon the appellant in this case to give
account of each day of the four years’ delay which he did not. The appellant may
have a good case for the alleged unfair termination, but in the circumstances of
this case, he ought to have accounted for each day of the four years of delay, which
536
he did not. See Bariki Israel v. R., Criminal Application No. 4 of 2011 which we
referred in the case of Sebastian Ndaula v. Grace Rwamafa, Civil Application No.
4 of 2014 (both unreported). We said:
The position of this Court has consistently been to the effect

that in an application for extension of time, the applicant
has to account for every day to the delay. (Emphasis
added).
It is very unfortunate in the present case that the appellant did not show how, and
what was the respondent’s contribution to the delay of more than four years. We
find it quite unusual because no prudent, reasonable and diligent person would
have endured four years' consecutive empty promises of the employer. It follows
therefore, that on account of the time bar the CMA and the High Court having not
gone to the merit part of the dispute, a claim of unfair termination should have not
been raised. Ground (ii) of the appeal is dismissed.
As for the appellant's complaint that he was not to blame because he spent the time
on the court corridors therefore a technical delay, like Mr. Mushi argued, in our
view rightly so, again the appellant's allegations were not proved on the basis of
each day of the delay.
It is our considered view that however slight the delay might be, unless, at least on
the balance of probabilities the appellant justified it, his blanket plea of technical
delay to us counts for nothing leave alone the alleged, but undisclosed ‘illegalities’.
It is very clear to us that the appellant did not meet the threshold required by the
law. Just as we are impressed to hold that in refusing the extension of time, the
High Court judge exercised her discretion judiciously. Ground (i) is dismissed. So
is ground (iii) of the appeal.
The outcome of the appeal is that we uphold the decision of the High Court and
dismiss the appeal. As the appeal arises from a labour dispute, we order no costs.
It is so ordered.
Appeal dismissed
PATRICK MAGOLOGOZI MONGELLA v. THE BOARD OF

TRUSTEES OF THE PUBLIC SERVICE SOCIAL SECURITY
FUND
AT DAR ES SALAAM
537
(Application from the Judgment and Decree of the High Court of Tanzania,
Labour Division at Dar es Salaam, Mipawa, J., dated 4th August, 2016 in
Revision – jurisdiction of the Court – whether in a revision the Court has power
to re-appreciate and reassess the evidence on record and whether the ten grounds
of revision upon which the application is based raise matters of fact or points of
law.
Revision – jurisdiction of the court – parameters in which the court’s revisional
jurisdiction can be invoked for the purposes of satisfying itself as to correctness,
legality or propriety of any finding, order or any decision made and as to the
regularity of any proceedings of the High Court - section 4 (3) of the Appellate
Jurisdiction Act, Cap 141
Interpretation – matters of law and facts – appellate and revisional jurisdiction of
the Court of appel.
The applicant was employed as the Director of Operations of the defunct Board of
Trustees of the Public Sector Pension Fund whose successor by the operation of
law with effect from 1st August, 2018 is the respondent, the Board of Trustees of
the Public Service Social Security Fund. Later, the respondent terminated the
applicant's services upon convicting him of acts of insubordination. The applicant
vainly challenged the termination in the Commission for Mediation and
Arbitration, which, ruled in favour of the respondent. Dissatisfied, the applicant
unsuccessful applied for revision in the High Court, hence, this appeal.
Ahead of the hearing of the appeal, the Court directed the learned counsel that,
apart from submitting on the merits of the application, they should address the
Court on the application’s competence; whether the applicant has properly invoked
the revisional jurisdiction of the Court to deal with supposedly matters of fact. In
that vein, the Court particularly invited counsel to address it on, one, whether in a
revision this Court has power to re-appreciate the evidence on record; and two,
whether the ten grounds of revision upon which the application is based raise
matters of fact or points of law.
Held: i) It is the position of the law that an applicant who cannot appeal on a
finding of the Labour Court on matters of fact can apply for revision of the
decision. However, this position of the law does not provide for the ambit and
parameters of the Court's revisional jurisdiction to re-assess or re-appreciate the
evidence on record so as to come up with its own findings.
ii) The Court’s appellate jurisdiction as delineated by section 4 (2) of the AJA
involves a re-hearing on fact and law, subject to the limitation in some way by
sections 5 and 6 of the AJA, the Court's revisional jurisdiction under section 4 (3)
538
of the AJA does not necessarily involve any re-hearing. The jurisdiction “for
calling for and examining the record of proceedings before the High Court” is
analogous to a power of superintendence for the purpose of keeping the High Court
within the bounds of its jurisdiction so as to ensure that it hears and determines
matters according to law, applicable procedure and defined principles of justice
and fair play
ii) The inquiry into the regularity of the impugned proceedings will not go beyond
examining whether the proceedings followed the applicable procedure and
accorded with the principles of natural justice and fair play. None of these
endeavours will involve a re-appreciation or re-appraisal of the evidence on record,
which, is what the Court does while exercising its appellate authority on a first
appeal by re-hearing the case on fact and law and coming up with its own findings
of fact.
iv) Any suggestion that the Court can re-hear and re- appreciate the evidence when
exercising its revisional jurisdiction will obliterate the distinction between the
Court's appellate authority and its power of superintendence, respectively, under
subsections (2) and (3) of section 4 of the AJA.
v) The Court's revisional authority under section 4 (3) of the AJA cannot be
invoked for the purpose of dealing with purely matters of fact which were allegedly
decided wrongly by the Labour Court. Revisional power is not for a fact-finding
expedition leading to interference with the findings of fact recorded by the CMA
or the Labour Court. That power is not and cannot be equated with the power of
reconsideration of all questions of fact as a court of first appeal.
vi) The Court can only re- appreciate the evidence in the course of discharging its
revisional jurisdiction in scenarios raising points of law including the following:
one, determining whether a finding of fact recorded by High Court (or the Labour
Court) is according to law and does not suffer from any error of law. Two, whether
a finding of fact is perverse or has been arrived at without consideration of the
material evidence or such finding is based on no evidence or misreading of the
evidence or is grossly erroneous.
vii) The Court has no authority under section 4 (3) of the AJA to consider and
determine pure matters of fact which cannot be entertained in an appeal made
under section 57 of the Act.
viii) The term “matter of fact” means that which is to be ascertained by the senses,
or by the testimony of witnesses describing what they have perceived" while a
matter of law is expressed as “whatever is to be ascertained or decided by the
application of statutory rules or the principles and determinations of the law, as
distinguished from the investigation of particular facts.”
viii) Even if it were assumed that this Court's revisional jurisdiction could be
invoked for the purpose of fact-finding, the alleged “matters of fact” in the notice
of motion raise points of law, which should have been pursued in an appeal.
539
Cases referred to
(1) Halais Pro-Chemie v. Wella A.G. [1996] TLR 269;
(2) Moses Mwakibete v. The Editor - Uhuru and Two Others [1995] T.L.R. 134;
and
(3) Transport Equipment Ltd v. D.P. Valambhia [1995] T.L.R. 161;
(4) Olmeshuki Kisambu v. Christopher Nain’gola [2002] TLR 280 at 283;
(5) Halima Hassan Marealle v. Parastatal Sector Reform Commission &
Another, Civil Application No 84 of 1999;
(6) Hasmukh Bhangwanji Masrani v. Dodsal Hydrocarbons and Power
(Tanzania) PVT Limited & Three Others, Civil Application No. 100 of
2013;
(7) Addissery Raghavan v. Cheruvalath Krishnadasan, Civil Appeal No. 2528-
29 of 2020;
(8) The Board of Trustees of the National Social Security Fund (NSSF) v.
Leonard Mtepa, Civil Application No. 140 of 2005;
(9) M/s. Sri Raja v. Lakshmi Dyeing Works and Others v. Rangaswamy Chettiar
[(1980) 4 sec 246];
(10) Atlas Copco Tanzania Limited v. Commissioner General, Tanzania Revenue
Authority, Civil Appeal No. 167 of 2019; and
(11) Kilombero Sugar Company Limited v. Commissioner General (TRA), Civil

(1) Section 4 (3) of the Appellate Jurisdiction Act, Cap 141
(2) Section 57 of the Labour Institutions Act, [Cap. 300 R.E. 2019]
Messrs. Masatu and Mwalongo, for Applicant

Mr. Msuya and Kiumba, for Respondent
RULING OF THE COURT

Dated 22nd April, 2022
540
NDIKA, J.A.: The applicant, Patrick Magologozi Mongella, was employed on
19th November, 2003 as the Director of Operations of the defunct Board of
Trustees of the Public Sector Pension Fund (the “PSPF”) whose successor by the
operation of law with effect from 1st August, 2018 is the respondent, the Board of
Trustees of the Public Service Social Security Fund. On 9th March, 2013, the
respondent terminated the applicant's services upon convicting him of acts of
insubordination against the then Acting Director General of the PSPF. The
applicant vainly challenged the termination in the Commission for Mediation and
Arbitration (“the CMA'”), which, by its award dated 31st March, 2015, ruled that
the termination was fair, substantively and procedurally. Resenting that outcome,
the applicant applied to the High Court, Labour Division (“the Labour Court”) for
revision of the CMA's award but once again the effort went unrewarded. He now
moves this Court for revision of the High Court's decision, which was handed
down on 4th August, 2017.
The application before us is by notice of motion predicated upon, among others,
section 4 (3) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2019] (“the AJA”)
and rule 65 of the Tanzania Court of Appeal Rules, 2009, seeking the following
orders:
a) An order setting aside the High Court's decision dismissing
the applicant1s application for revision;
b) A declaration that the termination of employment of the
applicant by the respondent was not fair;
c) An order replacing the High Court's order of dismissal of the
revision application with an order granting the same and
consequently setting aside the CMA’s decision.
d) An order to reinstate the applicant without loss of
remuneration from the date of unfair termination to the
date of reinstatement.
The applicant swore an affidavit in support of the application. The respondent

opposes the application and had its Director of Human Resources and
Administration, Mr. Paul Chakale Kijazi, depose an affidavit in reply.
By way of background to the matter, the applicant avers in the supporting affidavit
that, being aggrieved by the High Court's decision, he initially lodged a notice of
appeal on 11th August, 2017 and a letter requesting for copies of proceedings,
judgment and decree. The said notice and letter were duly served on the
respondent. Subsequently, upon receiving and reading the copies of the impugned
judgment and decree of the High Court, he realized that there were “several matters
of fact which were wrongly decided” and therefore it dawned on him that his
grievances concerned matters of fact or mixed law and fact as opposed to pure
541
matters of law. Since in terms of section 57 of the Labour Institutions Act, [Cap.
300 R.E. 2019] (“the Act”), an appeal to this Court from any decision of the Labour
Court lies on a point of law only, he terminated the appeal process he had initiated
by having his notice of appeal marked withdrawn on 24th April, 2018 by the order
of Juma, C.J. Desirous of pursuing the matter by way of revision as the only
feasible option, he sought and obtained an order of extension of time dated 18th
June, 2019 upon which he lodged this matter on 14th August, 2019.
The application is predicated on ten grounds, which, according to the applicant,
raise questions of fact but not pure points of law. We take the liberty to reproduce
them in full as hereunder:
(i) That the Honourable High Court erred in fact in holding
that the two charges of insubordination and use of rude
language were proved against the applicant while there is
nothing on record to constitute proof of the same.
(ii) The documentary evidence used by the arbitrator and
affirmed by the Hon. Judge were neither tendered nor
admitted during trial at the Commission for Mediation and
Arbitration.
(iii)That the minutes of the Management Meeting that sat on
26h July 2012 which were the basis of the disciplinary
charges were confirmed on 23rd August 2012 with the changes
and the effect of changes meant that the decisions and
instructions made and recorded in the minutes of 26h July
2012 were vague.
(iv)That Mr. Adam Mayingu, the respondent's Director
General, who was the complainant against the applicant,
participated in the meetings of the PSPF Board Committee for
Staff Welfare, Appointments and Disciplinary Matters; also,
in the Board Meetings of the respondent to deliberate the
charges against the applicant and making the decision to
terminate the employment of the applicant in the absence of
the applicant, making the whole disciplinary process biased.
(v)The Honourable Judged erred in fact in holding that the
applicant did not challenge the substantive fairness of his
termination of employment while paragraph 25 of the
affidavit in support of the revision pleaded that the award was
founded on evidence that was not tendered and admitted and
ground ten of the submission for revision was based on
substantive fairness.
542
(vi)That the Honourable Judge erred in fact in not deciding
the issue of composition of the inquiry committee in the light
of the evidence on record by PW1 and PW3.
(vii) That the Committee of the Board and the Board of
Trustees were improperly constituted at the time they
deliberated on this matter as per the Social Security Laws
(Amendments) Act, 2012. (viii) That the Honourable Judge
erred in fact in holding that there is enough evidence as per
the Commission for Mediation and Arbitration's records that
the applicant was given time to mitigate his case as per the
disciplinary proceedings and disciplinary procedures of the
respondent while there was none on record.
(ix) That the Honourable Judge erred in fact in not
finding that the
Chairman of the Board was actively involved in the
disciplinary process by issuing the suspension letter, charge
sheet, notice of hearing, participated in the deliberations of
the decision and issued the termination letter thus making the
whole disciplinary process biased.
(x) That the Honourable Judge erred in fact in not
finding that the applicant was not heard by the Board of
Trustees prior to termination.
We heard the application on 21st February, 2022. Before us, Messrs. Makaki
Masatu and Frank Mwalongo, learned advocates, stood for the applicant. On the
adversary side, Mr. Elisa Abel Msuya and Ms. Regina Anthony Kiumba, learned
counsel, appeared for the respondent.
Ahead of the hearing, we directed the learned counsel that, apart from submitting
on the merits of the application, they should address us on its competence; whether
the applicant has properly invoked the revisional jurisdiction of the Court to deal
with supposedly matters of fact. In that vein, we particularly invited them to
address us on, one, whether in a revision this Court has power to re-appreciate the
evidence on record; and two, whether the ten grounds of revision upon which the
application is based raise matters of fact or points of law.
At the outset, we acknowledge that section 57 of the Act provides that any appeal
to this Court from a decision of the Labour Court lies on a point of law only. It
Any party to the proceedings in the Labour Court may appeal
against the decision of that court to the Court of Appeal of
Tanzania on a point of law only.
543
In effect, the above provision bars appeal to this Court against any decision of the
Labour Court on matters of fact.
In determining whether the Court's revisional jurisdiction has been properly
invoked in this matter for the purpose of dealing with what have been dubbed as
“matters of fact,” we think that it is apt that we start off by extracting the provisions
of section 4 (3) of the AJA vesting the Court with the power of revision:
(3) Without prejudice to subsection (2) the Court of Appeal
shall have the power, authority and Jurisdiction to call for and
examine the record of any proceedings before the High Court
for the purpose of satisfying itself as to the correctness,
legality or propriety of any finding, order or any other
decision made thereon and as to the regularity of any
proceedings of the High Court. [Emphasis added]
We have deliberately emboldened the text to the above provision to underline that
the Court's revisional authority thereunder is for the purpose of satisfying itself as
to the “correctness, legality or propriety of any finding, order or any other
decision made thereon and as to the regularity of any proceedings of the High
Court.” Before we discuss what this power entails, we would restate, so far as this
matter is concerned, that it is settled jurisprudence that this authority may be
invoked in matters which are not appealable to the Court with or without leave.
Indeed, that was a part of the holding of the Court in Halais Pro-Chemie v. Wella
A.G. [1996] TLR 269 at page 272, which was based on its two earlier decisions:
Moses Mwakibete v. The Editor - Uhuru and Two Others [1995] T.L.R. 134 and
Transport Equipment Ltd v. D.P. Valambhia [1995] T.L.R. 161. For clarity, we
extract the said holding as follows:
We think that Mwakibete's case read together with the case of
Transport Equipment Ltd are authority for the following legal
propositions concerning the revisional jurisdiction of the
Court under ss (3) of s 4 of the Appellate Jurisdiction Act,.
1979:
(i) The Court may on its own motion and at any time, invoke
its revisional jurisdiction in respect of proceedings in the High
Court;
(ii) Except under exceptional circumstances, a party to
proceedings in the High Court cannot invoke the revisional
jurisdiction of the Court as an alternative to the appellate
jurisdiction of the Court;
(iii) A party to proceedings in the High Court may
invoke the revisional jurisdiction of the Court in matters
which are not appealable with or without leave;
544
(iv) A party to proceedings in the High Court may
invoke the revisional jurisdiction of the Court where the
appellate process has been blocked by judicial process.
[Emphasis added]
Certainly, the instant application falls under item (iii) in the above holding; for, it
is common ground that no appeal lies to the Court from a Labour Court's decision
on matters of fact.
We wish to acknowledge that this application for revision is not novel. We
encountered an analogous matter in Muhimbili National Hospital (supra) where
we took the view that an applicant who could not appeal on a finding of the Labour
Court on matters of fact could apply for revision of the decision. However, in that
decision we did not specifically interrogate and determine whether it is within the
ambit and parameters of the Court's revisional jurisdiction to re-assess or re-
appreciate the evidence on record so as to come up with its own findings.
We think that in the instant case, we are enjoined to determine the ambit and
parameters of the Court's revisional authority, which is expressly legislated for the
purpose of the Court satisfying itself as to the “correctness, legality or propriety of
any finding, order or any other decision made thereon and as to the regularity of
any proceedings of the High Court.”
We scanned the decisions of the Court but we did not find one clearly delineating
the parameters of the Court's revisional authority under section 4 (3) of the AJA
so far as the question of re-appraisal of matters of fact is concerned. Of course,
we noted, for example, that in Olmeshuki Kisambu v. Christopher Nain’gola
[2002] TLR 280 at 283, the Court observed that the power of revision can:
come into play where the record reveals incorrectness,
illegality or impropriety in any finding, order or other
decision of the High Court or irregularity in the proceedings
of the court.
In the same vein, the Court in Halima Hassan Marealle v. Parastatal Sector
Reform Commission & Another, Civil Application No 84 of 1999 (unreported)
stated that:
It is apparen t that the provision of this subsection seeks
to ensure that this Court has powers to rectify any errors,
illegalities or impropriety in the decisions or proceedings
of the High Court which come or are brought to its
attention. Thus, the Court may be moved in revision by a
third party who, say, has an interest in the matter. Likewise,
the Court, acting on its own information or on information
545
received from anyone, may of its own motion initiate revision
proceedings. It is necessary to reiterate, however, that the
power of revision under sub-section (3) is exercisable
sparingly and only in limited circumstances, such as, where
no right of appeal lies to this Court, the reason being that the
subsection should not be regarded as providing an
alternative to appeal process. [Emphasis added]
In Hasmukh Bhangwanji Masrani v. Dodsal Hydrocarbons and Power (Tanzania)

PVT Limited & Three Others, Civil Application No. 100 of 2013 (unreported), the
Court held that section 4 (3) of the AJA provides two distinct avenues for invoking
its revisional jurisdiction:
The first distinct scope and parameters are grounds which call
upon this Court to satisfy itself on correctness, or legality or
propriety of any finding, order or any other decision made by
the High Court. The second distinct scope and parameters are
grounds calling this Court to satisfy itself of the regularity of
any proceedings of the High Court. Existence of these
two distinct avenues for moving this Court on revision
have been tangentially confirmed in The Board of Trustees
of the National Social Security Fund (NSSF) v. Leonard
Mtepa, Civil Application No. 140 of 2005 (unreported) where
we suggested a difference between on one hand, revision for
purposes of satisfying ourselves of regularity of the
proceedings which were pending in the High Court· and on
the other hand, revision for the purposes of considering the
legality and correctness of orders of the High Court.
Luckily, the question at hand has received judicial consideration in India on several
occasions out of which we can borrow a leaf. The decision of the Supreme Court
of India in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, (2014) 9 sec
78 appears to be of immense significance. In that case, the Supreme Court had to
determine the ambit and scope of revisional jurisdiction of, inter alia, the High
Court with particular reference to three Rent Control Statutes of the states of Delhi,
Kerala and Tamil. The revisional jurisdiction provisions in the said statutes were
in pari materia. For illustration, we extract section 20 of the Kerala Building
(Lease and Rent Control) Act, 1965, stipulating as follows:
20. Revision. - (1) In cases, where the appellate authority
empowered under section 18 is a Subordinate Judge, the
District Court, and in other cases the High Court, may, at
any time, on the application of any aggrieved party, call for
546
and examine the records relating to any order passed or
proceedings taken under this Act by such authority for the
purpose of satisfying itself as to the legality, regularity or
propriety of such order or proceedings, and may pass such
order in reference thereto as it thinks fit. [Emphasis added]
Having examined in that case the extent, ambit and meaning of the terms
“legality”, “propriety”, “correctness” and “regularity” used in the three Rent
Control Acts, the Supreme Court observed in paragraphs 27 to 30 of its judgment
as follows:
27. The ordinary meaning of the word legality is lawfulness.
It refers to strict adherence to law, prescription, or doctrine;
the quality of being legal.
28. The term propriety means fitness; appropriateness,
aptitude; suitability; appropriateness to the
circumstances or condition conformity with requirement;
rules or principle, rightness, correctness, justness, accuracy.
29. The terms correctness and propriety ordinarily convey the
same meaning, that is, something which is legal and proper.
In its ordinary meaning and substance, correctness is
compounded of legality and propriety and that which is legal
and proper is correct.
30. The expression regularity with reference to an order
ordinarily relates to the procedure being followed in accord
with the principles of natural justice and fair play.
Ultimately, the said Court concluded that the revisional jurisdiction of the High
Court for the purpose of satisfying itself as to the correctness, legality, propriety
or regularity of such order or proceedings does not involve the authority to re-
appreciate the evidence on record. For clarity, we reproduce at length the said
Court's conclusion as expressed in paragraph 45 of the judgment:
45. We hold, as we must, that none of the above Rent Control
Acts entitles the High Court to interfere with the findings of
fact recorded by the First Appellate Court/First Appellate
Authority because on re-appreciation of the evidence, its
view is different from the Court/Authority below. The
consideration or examination of the evidence by the High
Court in revisional Jurisdiction under these Acts is confined
to find out that finding of facts recorded by the
Court/Authority below is according to law and does not suffer
from any error of law. A finding of fact recorded by
547
Court/Authority below, if perverse or has been arrived at
without consideration of the material evidence or such
finding is based on no evidence or misreading of the
evidence or is grossly erroneous that, if allowed to stand,
it would result in gross miscarriage of justice, is open to
correction because it is not treated as a finding according
to law. In that event, the High Court in exercise of its
revisional jurisdiction under the above Rent Control
Acts shall be entitled to set aside the impugned order as
being not legal or proper. The High Court is entitled to satisfy
itself [on] the correctness or legality or propriety of any
decision or order impugned before it as indicated above.
However, to satisfy itself to the regularity, correctness,
legality or propriety of the impugned decision or the
order, the High Court shall not exercise its power as an
appellate power to re-appreciate or re- assess the evidence
for coming to a different finding on facts. Revisional
power is not and cannot be equated with the power of
reconsideration of all questions of fact as a court of first
appeal. Where the High Court is required to be satisfied
that the decision is according to law, it may examine
whether the order impugned before it suffers from
procedural illegality or irregularity” [Emphasis added]
The above decision was followed recently by the said Court in Addissery
Raghavan v. Cheruvalath Krishnadasan, Civil Appeal No. 2528-29 of 2020. As
we shall demonstrate below, we think the holding in Hindustan Petroleum
Corporation Ltd. (supra) equally applies to the revisional authority of this Court
under section 4 (3) of the AJA.
While we are cognizant that this Court’s appellate jurisdiction as delineated by
section 4 (2) of the AJA would involve a re-hearing on fact and law, subject to the
limitation in some way by sections 5 and 6 of the AJA, the Court's revisional
jurisdiction under section 4 (3) of the AJA does not necessarily involve any re-
hearing. The jurisdiction “for calling for and examining the record of proceedings
before the High Court” is analogous to a power of superintendence for the purpose
of keeping the High Court within the bounds of its jurisdiction so as to ensure that
it hears and determines matters according to law, applicable procedure and defined
principles of justice and fair play - see similar reasoning in M/s. Sri Raja v.
Lakshmi Dyeing Works and Others v. Rangaswamy Chettiar [(1980) 4 sec 246].
So, for instance, in determining the legality of a particular decision or order of the
High Court, this Court will examine if that decision or order has the quality of
being legal; that it has complied with the applicable law or doctrine. As for
548
correctness and propriety of any impugned decision or order, it would involve the
same endeavour to determine if it is legal and proper. The inquiry into the
regularity of the impugned proceedings will not go beyond examining whether the
proceedings followed the applicable procedure and accorded with the principles of
natural justice and fair play. None of these endeavours will involve a re-
appreciation or re-appraisal of the evidence on record, which, is what the Court
does while exercising its appellate authority on a first appeal by re-hearing the case
on fact and law and coming up with its own findings of fact. Any suggestion that
the Court can re-hear and re- appreciate the evidence when exercising its revisional
jurisdiction will obliterate the distinction between the Court's appellate authority
and its power of superintendence, respectively, under subsections (2) and (3) of
section 4 of the AJA.
In view of the foregoing, we are decidedly of the opinion that the Court's revisional
authority under section 4 (3) of the AJA cannot be invoked for the purpose of
dealing with purely matters of fact, which were allegedly decided wrongly by the
Labour Court. Revisional power is not for a fact-finding expedition leading to
interference with the findings of fact recorded by the CMA or the Labour Court.
That power is not and cannot be equated with the power of reconsideration of all
questions of fact as a court of first appeal.
Following the principle in Hindustan Petroleum Corporation Ltd. (supra), we hold
without any hesitation that the Court can only re- appreciate the evidence in the
course of discharging its revisional jurisdiction in scenarios raising points of law
including the following: one, determining whether a finding of fact recorded by
High Court (or the Labour Court) is according to law and does not suffer from any
error of law. Two, whether a finding of fact is perverse or has been arrived at
without consideration of the material evidence or such finding is based on no
evidence or mis reading of the evidence or is grossly erroneous. We would stress
that at the core of these scenarios are points of law, not matters of fact.
Concluding on the first issue, we are satisfied that the Court has no authority under
section 4 (3) of the AJA to consider and determine pure matters of fact which
cannot be entertained in an appeal made under section 57 of the Act.
We need not travel a long distance on the second issue whether the ten grounds of
revision upon which the application is based, raise matters of fact or points of law.
According to Black's Law Dictionary, 4th Edition, St. Paul, Minnesota, West
Publishing Co., 1968, at page 1,130, the term “matter of fact” means that which is
to be ascertained by the senses, or by the testimony of witnesses describing what
they have perceived" while a matter of law is expressed as “whatever is to be
ascertained or decided by the application of statutory rules or the principles and
determinations of the law, as distinguished from the investigation of particular
facts.”
549
In the case of CMA-CGM Tanzania Limited v. Justine Baruti, Civil Appeal
No. 23 of 2020 (unreported), the Court adopted in a labour dispute the definition
of a point of law in tax matters as expressed in the cases of Atlas Copco Tanzania
Limited v. Commissioner General, Tanzania Revenue Authority, Civil Appeal No.
167 of 2019; and Kilombero Sugar Company Limited v. Commissioner General
(TRA), Civil Appeal No. 14 of 2007 (unreported) as follows:
Thus, for the purpose of section 25 (2) of the TRAA, we think,
a question of law means any of the following: first, an issue
on the interpretation of a provision of the Constitution, a
statute, subsidiary legislation or any legal doctrine on tax
arrived at by the Tribunal where there is failure to evaluate
the evidence or if there is no evidence to support it or that it
is so perverse or so illegal that no reasonable tribunal would
arrive at it.
As we held in CMA-CGM Tanzania Limited (supra), the above definition would
apply mutatis mutandis to labour appeals to the Court.
Guided by the above definition, we carefully examined the ten points cloaked as
matters of fact in the notice of motion. Upon our careful and close reflection, none
of them raises a pure matter of fact. To begin with, it is so evident that the first,
second, third, fifth and eighth points challenge the findings of fact made by the
Labour Court either on the ground that they were unsupported by the evidence on
record or that they were based on extraneous matters or on a misapprehension of
the evidence on record. These complaints clearly raise questions of law which
ought to have been pursued in an appeal pursuant to section 57 of the Act. For,
they essentially charge that the said impugned findings cannot be treated as
findings made according to law. The same position holds true for the sixth and
seventh grounds charging that the inquiry committee was improperly constituted
contrary to the applicable law. The fourth, ninth and tenth grounds, contending that
the disciplinary hearing process that the applicant went through was a flawed
process on the ground that it was epitomised by bias and abrogation of his right of
hearing, equally raise matters of law, not bare factual contentions.
In the premises, we hold that even if it were assumed that this Court's revisional
jurisdiction could be invoked for the purpose of fact-finding, the alleged “matters
of fact” in the notice of motion raise points of law, which should have been pursued
in an appeal.
550
All said, we are satisfied that this application is completely misconceived.
Accordingly, we strike it out. We make no order as to costs bearing in mind that
this matter is a labour dispute normally not amenable to any award of costs.
PAUL YUSTUS NCHIA v. NATIONAL EXECUTIVE SECRETARY

CHAMA CHA MAPINDUZI AND ANOTHER
AT DAR ES SALAAM
(MROSO, NSEKELA, and KAJI., JJ.A.)
CIVIL APPEAL NO 85 OF 2005
(Appeal from the Judgment of the High Court of Tanzania at Mtwara, Lukelelwa,
J. dated 15th December, 2004, in Misc. Civil Appeal No. 9 of 2004)
Repatriation - appellant recruited in Dodoma but preferred to be repatriated to
Nachingwea - whether the appellant was entitled to be repatriated to Nachingwea
and whether the respondents were obligated to pay him subsistence allowance
upon termination of his employment- section 53 of the then Employment
Ordinance, Cap. 366 (now section 59, Employment Act, Cap. 366 RE 2002).
Reliefs – subsistence allowance – appellant paid part-payment of his terminal
benefits including repatriation expenses but spends it on other personal
commitments – whether employer is bound to pay subsistence allowance for the
rest of the days the employee remains at the working station.
Evidence – witness not cross-examined on his evidence – consequences thereto.
The appellant was an employee of the respondents until the 24.4.97 when his
employment came to an end. At the time of the termination of his employment, he
was at Lindi. The respondents, rather belatedly, paid to the appellant terminal
benefits which he considered insufficient. The appellant reported the matter to a
Labour Officer. In turn the matter was instituted by a Labour Officer as a report to
a Magistrate. The trial court dismissed the claim, but on appeal, the High Court
held that the appellant was entitled to be paid subsistence allowance. Aggrieved
by this decision, the appellant has now come to this Court on appeal.
Held: i) In terms of section 53 (1) of the Employment Act, Cap. 366, the
respondents were enjoined to repatriate the appellant to the place of engagement,
Dodoma. Where the employees express his desire to be repatriated to another place
in writing the employer is under a legal obligation to repatriate the employee to
that other place.
551
ii) The word “repatriation” is not defined in sub-section 3 of section 53 of Cap 366
but it includes payment of "subsistence expenses". Therefore, subsistence
allowance is payable to an employee upon repatriation, following termination of
employment to the former employee's place of engagement.
iii) Under section 103 (3) (b) of the Ordinance, the respondents were obligated to
pay the appellant subsistence expenses between the date of termination of
employment and the date of repatriation.
iv) Where a party has an obligation to mitigate costs by using part of the money
that is paid to meet the costs of transport to his home village, but he chooses to use
all that money to pay for his other commitments, the employer would not be liable
for his subsistence for the rest of the days he remains at his working station.
v) A party who fails to cross - examine a witness upon a particular matter in respect
of which it is proposed to contradict him or impeach his credit by calling other
witnesses, tacitly accepts the truth of the witness's evidence in chief on that matter,
and will not thereafter be entitled to invite the court to disbelieve him in that regard.
The proper course is to challenge the witness while he is in the witness - box or, at
any rate to make it plain to him at that stage that his evidence is not accepted.
Appeal allowed, cross - appeal dismissed
Cases referred to

(1) Section 53 (1) of the Employment Act, Cap. 366
Mr. Msewa, for Respondent

NSEKELA, J.A.: The appellant, Paul Yustus Nchia, was an employee of the
respondents from the 1.7.75 until the 24.4.97 when his employment came to an
end. At the time of the termination of his employment, he was at Lindi. The
respondents, rather belatedly, paid to the appellant terminal benefits which he
considered insufficient. As a result, in terms of section 132 of the Employment
Ordinance, Cap. 366, this matter was instituted by a Labour Officer as a report to
a Magistrate. The essence of the claim is perhaps best captured in paragraph 4:0
of the Labour Officer's Report which provides:
552
4:0 That the Claimant/Employee claims against the employer a
sum of TShs. 10,000,000/= being subsistence allowance for a
period from the date of termination of employment by the
employer i.e. 24.4.1997 to the date of part-payment of terminal
benefits i.e. 15.6.1998.
The trial court dismissed the claim, but on appeal, the High Court (Lukelelwa, J.)
held that the appellant was entitled to be paid subsistence allowance amounting to
Shs. 183,480/= being monthly salary from the 30.4.97 to 3.11.97. Aggrieved by
this decision, the appellant has now come to this Court on appeal. The appellant
appeared in person and unrepresented, while the respondents were represented by
one 0. Msewa, a Legal Officer.
The appellant preferred three grounds of appeal essentially challenging the basis
of the computation of subsistence allowance payable to him and the refusal by the
High Court to hold that Shs. 500,000/= advanced to the appellant was a loan and
not part - payment of terminal benefits. On their part, the respondents lodged a
cross - appeal. First, they disputed that any subsistence allowance was payable to
the appellant, and secondly, they disputed that the domicile of the appellant was at
Songambele Village, Nachingwea.
The main issue in this appeal and cross - appeal as we see it, is whether or not the
appellant was entitled to be repatriated to Nachingwea. If the answer is in the
affirmative, were the respondents obligated to pay him subsistence allowance upon
termination of his employment on the 24.4.97. Our starting point is a consideration
of section 53 of the then Employment Ordinance, Cap. 366 (now section 59,
Employment Act, [Cap. 366 R.E. 2002]. It provides as follows:
53 (1) Every employee who is a party to a contract and who has
been brought to the place of employment by the employer or by
any person acting on behalf of the employer shall have the right
to be repatriated at the expense of the employer to his place of
engagement in the following cases:
(a) - (e) omitted
(2) Where the family of the employee has been brought to the
place of employment by the employer or by any person acting on
behalf of the employer the family shall be repatriated at the
expense of the employer whenever the employee is repatriated
or in the event of his death.
(3) The expenses of repatriation shall include
(a)............
(b) subsistence expenses or rations during the period, if any
between the date of termination of the contract and the date of
repatriation.
553
(4)The employer shall not be liable for subsistence expenses or
rations in respect of any period during which the repatriation of
the employee has been delayed -
(a) by the employee's own choice; or
It is evident from exhibit P2 that there was a contract of employment between the
appellant and the respondents. The place of engagement was Dodoma. However,
when the contract was terminated, the appellant's place of employment was Lindi.
Therefore, in terms of section 53 (1) of Cap. 366 above, the respondents were
enjoined to repatriate the appellant to the place of engagement, Dodoma. The word
“repatriation” has not been defined in Cap. 366, but we can get its gist in subsection
(3) of Section 53 quoted above. It includes payment of "subsistence expenses".
Therefore, subsistence allowance is payable to an employee upon repatriation,
following termination of employment to the former employee's place of
engagement. (see: Civil Appeal No. 62 of 2000 between Nicholaus Hamisi and
1013 Others and (i) Tanzania Shoe Company Ltd. and (ii) Tanzania Leather
Associated Industries (unreported)).
The appellant was in Lindi when he was terminated. He claimed that he be paid
subsistence allowance to Nachingwea. This was not his place of engagement to
bring into play section 103 of Cap 366 (section 112, [Cap 366 R.E. 2002]) which
provides as under:
103 (1) Whenever an employee shall have been brought to the
place of employment by the employer or by any person acting on
his behalf the employer shall at the termination of the contract of
service pay expenses of repatriating the employee by reasonable
means to the place from which he was brought, if the
employee so desires (emphasis added)
(Proviso omitted)
(2)..........
(3) The expenses of repatriation shall include-
(a) the cost of traveling and subsistence expenses or rations to the
place of engagement.
(b) subsistence expenses during the period, if any, between the
date of termination of the contract and the date of repatriation.
Under section 103 (3) (b) of the Ordinance, the respondents were obligated to pay
the appellant subsistence expenses between the date of termination of employment
and the date of repatriation. DW 1 tendered in evidence exhibit D3, a letter from
the appellant to his employer, the respondents. In the said letter, the appellant
wanted to be repatriated to Songambele Village, Nachingwea District. This letter
reads in part as under:
554
YAH: MADAI YA MAFAO BAADA YA KUSTAAFISHWA
KAZI.
Pia kama nilivyojieleza kwenye barua hiyo kifungu (i) na (ii)
kukurahisishia kukisia malipo ya kufunga mizigo na kusafirisha
kutoka kwenye kituo cha kazi nilichokuwapo hadi nyumbani
kwangu pamoja na barua hii hapa naambatanisha pro-forma
invoice ya gharama ya usafiri Lindi mpaka kijiji cha
Songambele Wilaya ya Nachingwea kwa hatua za utekelezaji
kama ilivyo utaratibu wa Utumishi katika Chama Cha
Mapinduzi." (emphasis added)
The appellant expressed his desire to be repatriated to Nachingwea in this letter
written on the 2.6.97. The respondents in their written statement of defence clearly
stated that the appellant “hailed from Nachingwea District within Lindi
Region.” It is correct that in his personal particulars, exhibit D2, the appellant
stated that he was born at Nakadi Village, Lindi District, but the appellant in
exhibit D3 had expressed a desire to be repatriated to Nachingwea. Mr. Msewa,
DW 1 in his evidence stated:
Moreover, we were supposed to ferry him to his district
headquarters. He hails not from Nachingwea actually. I pray to
tender his copy of application for terminal benefits.
The document he tendered in evidence was exhibit D3 which has been reproduced
in part above. Item no. 6 of this exhibit reads:
(6) MADAI YA MAFAO YA UTUMISHI WACCM.
(v) Gharama za kusafirisha mizigo kutoka Lindi-Kijijini
Songambele Nachingwea.
This letter materially contradicts what Mr. Msewa had just said before in his
evidence. Exhibit D3 speaks for itself. The respondents were therefore under a
legal obligation to repatriate the appellant from Lindi to Nachingwea.
The next issue to be resolved is how much should the respondents pay to the
appellant as subsistence allowance. The High Court (Lukelelwa, J.) awarded to the
appellant Shs. 183,480/= being six months’ salary. There was evidence that the
appellant, after his employment had been terminated, continued to stay in Lindi
and did not go to Nachingwea. This is factually true but the response of the
appellant is that he was forced to stay at Lindi because of the respondents’ failure
to pay him repatriation expenses. The appellant contended that the respondents
should have paid him subsistence allowance soon after the termination of his
employment on the 24.4.97. Apparently the appellant was paid his last instalment
555
on the 15.6.98, a delay of 417 days. The appellant had conceded that on the 3.11.97
the respondents had paid him Shs. 550,000/= which he claimed was a loan to assist
him in solving financial problems. With due respect to the appellant, there is no
scintilla of evidence on the record to establish that this was a loan to him. We are
in respectful agreement with Mr. Msewa that this was part-payment of his terminal
benefits including repatriation expenses. This fact was admitted in paragraph 9 of
the reply to the written statement of defence. In paragraph 8 of the reply, the
appellant also admitted that the repatriation expenses to Nachingwea amounted to
Shs. 191, 740/=. We are of the settled view that since the respondent as at 3.11.97
had made advance payment of Shs. 550,000/= the appellant had an obligation to
mitigate costs by using part of that money to meet the cost of transport to his home
village. But if he chose to use all that money to pay for his other commitments, the
employer would not be liable for his subsistence for the rest of the days he
remained in Lindi.
Now we come to the question of the rate of subsistence allowance. Paragraph 4 of
the Labour Officer's Report had put the appellants claim at Shs. 10,000,000/=
reckoned from the 24.4.97 to the date of part - payment, the 15.6.98. The learned
judge on first appeal awarded to the appellant Shs. 183,480/= as subsistence
allowance, being six months salary. It is trite law that he who alleges must prove.
The appellant therefore had to establish how much he should be paid. In his
evidence, the appellant had this to say:
I so ceased working as an officer entitled to Tshs. 15,000/= per

day. Inclusive of my wife Lilian Mtoro Kitundu and three
Children... So my total claim is to the tune of Tshs. 52,500 x 417
days
This was the only evidence before the trial court on subsistence allowance. The
first part relates to the rate of Shs. 15,000/= per day. The second part is the
inclusion of his wife and children in the calculations and lastly the number of days
involved in the calculations. We have already resolved the third aspect. The
respondents are liable to pay subsistence allowance from the 25.4.97 to the
3.11.97. As regards the first and second aspects, Mr. Msewa did not cross -
examine PW 1 When he testified on those matters. Hence, that is the only
uncontradicted evidence on the record which we accept. The learned authors of
Blackstone’s Criminal Practice (1992) have this to say at paragraph F7.4 at page
1871:
A party who fails to cross - examine a witness upon a particular
matter in respect of which it is proposed to contradict him or
impeach his credit by calling other witnesses, tacitly accepts the
truth of the witness's evidence in chief on that matter, and will
556
not thereafter be entitled to invite the jury to disbelieve him in
that regard. The proper course is to challenge the witness while
he is in the witness - box or, at any rate to make it plain to him
at that stage that his evidence is not accepted.
In the result, we allow the appeal with costs to the extent that the appellant is
entitled to be paid subsistence allowance at the rate of Shs. 15,000/= per day
including his wife and three children with effect from the 25.4.97 to 3.11.97. Any
advance payment already made to the appellant should be deducted accordingly.
The cross - appeal is dismissed in its entirety.
Appeal allowed, cross - appeal dismissed
PETER MABIMBI v. THE MINISTER FOR LABOUR AND

YOUTHS DEVELOPMENT AND OTHERS
AT MWANZA
CIVIL APPLICATION NO. 88/08/2017
(Application for extension of time within which to file Notice of Appeal and
apply for Leave to Appeal from the Order of the High Court of Tanzania at
Mwanza, Masanche, J., dated 13th May, 2003 in Miscellaneous Civil Application
No. 95 of 2002)
Application for Extension of time – good cause – what constitutes good cause
Application for extension of time – Initially the applicant fell sick and attended
treatment at two hospitals – for eight years the applicant was in the corridors of
the High Court at Mwanza in an unsuccessful bid for extension of time within
which to lodge a Notice of Appeal and apply for leave to appeal to this Court -
whether there is a good cause for condonation of the delay.
Affidavit – failure to show whether attesting officer knew the deponent – whether
affidavit is defective.
The applicant was an employee of the third respondent. He later on, was summarily
remove from office. Aggrieved, the applicant contested the summary dismissal by
instituting proceedings before the Conciliation Board at Mwanza. The Board
ordered that he be reinstated into his former office but it also imposed on him a
two-days salary deduction. Dissatisfied, the third respondent appealed to the first
respondent against the Board's decision. In his decision the first respondent
allowed the third respondent's appeal and reversed the Board's verdict of
reinstatement. The applicant's dismissal from office, subject to payment of
557
terminal benefits, was confirmed. After a hiatus allegedly caused by ill-health, the
applicant sought and obtained from the High Court at Mwanza an extension of
time to apply for leave to seek prerogative orders of certiorari and mandamus
against the third respondent's decision in the labour dispute. That application came
to naught. Desirous of challenging that decision, he appealed to this Court after
making other applications in between which were struck out by the Court.
Held: i) Affidavit which does not clearly show whether the attesting officer knew
the deponent personally or whether the deponent was identified to him by a person
whom he personally knew renders it fatally defective.
ii) Although the Court's power for extending time under Rule 10 of the Rules is
both broad and discretionary, it can only be exercised if good cause is shown. Even
though it may not be possible to lay down an invariable definition of the phrase
"good cause" so as to guide the exercise of the Court's discretion under Rule 10,
the Court must consider factors such as the length of the delay, the reasons for the
delay, the degree of prejudice the respondent stands to suffer if time is extended,
whether the applicant was diligent, whether there is point of law of sufficient
importance such as the illegality of the decision sought to be challenged.
iii) The applicant duly accounted for the period of time that ensued after 25th
October 2013. Initially, he fell ill and attended treatment at Sekou Toure Hospital
and later at Bugando Hospital at Mwanza as evidenced by the medical reports he
produced whose authenticity was not questioned by the respondents. Besides, the
entire period of time that the applicant spent pursuing the two applications in the
Court qualifies for condonation.
Application partly granted
Cases referred to
(1) Simplisius Felix Kijuu Issaka v The National Bank of Commerce Limited,
Civil Application No. 24 of 2003; and Amani Girls Home v. Issack C.
Kamela, Civil Application No. 18 of 2014
(2) Laurean Rugaimukamu v. The Editor, Mfanyakazi Newspaper and Another
[2001] T.L.R. 79.
(3) Mobrama Gold Corporation Ltd. v. Minister for Energy and Minerals and
the Attorney General and East African Goldmines Ltd. as Intervener, [1998]
T.L.R. 425
(4) Castellow v. Somerset County Council [1993] 1 All E.R. 952
558
(5) Dar es Salaam City Council v. Jayantilal P. Rajani, Civil Application No.
27 of 1987;
(6) Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A.
Mwalwanda, Civil Application No. 6 of 2001;
(7) Eliya Anderson v. Republic, Criminal Application No. 2 of 2013; and
(8) William Ndingu @ Ngoso v. Republic, Criminal Appeal No. 3 of 2014.
(9) Lyamuya Construction Company Limited v. Board of Registered Trustees of
Young Women Christian Association of Tanzania, Civil Application No. 2
of 2010

(1) Rules 4 (2) (a), (b) and (c) of the Tanzania Court of Appeal Rules, 2009;
(2) Rule 10 of the Tanzania Court of Appeal Rules, 2009;
(3) Section 10 of the Oaths and Statutory Declarations Act, [Cap. 34 R.E. 2002].
Ms. Kileo, State Attorney and Mr. Kyarukuka, for Respondent
RULING OF THE COURT

NDIKA, J.A.: Peter P. Mabimbi, the applicant herein, took out a Notice of Motion
on 13th February, 2017 under Rules 4 (2) (a), (b) and (c) and 10 of the Tanzania
Court of Appeal Rules, 2009 (the Rules) praying for extension of time within
which to lodge a Notice of Appeal and apply for leave to appeal to this Court
against the order of the High Court at Mwanza (Masanche, J.) dated 13th
November, 2003 in Miscellaneous Civil Application No. 95 of 2002. He also prays
for an order directing the High Court (Mwanza Registry) to supply him with a
properly signed extracted order of the High Court intended to be appealed against.
In support of the application, the applicant deposed and lodged an affidavit. The
application was strongly opposed by the respondents who lodged two separate
affidavits in reply; one sworn by Ms. Bibiana Joseph Kileo, Senior State Attorney,
filed on behalf of the first and second respondents and the other deposed by Mr.
Laurian Hakim Kyarukuka, an advocate, for and on behalf of the third respondent.
559
The backdrop to this matter is a protracted dispute that ensued in 1996. The
applicant was an employee of the third respondent from 1st June, 1988 until 2nd
July, 1996 when he was summarily removed from office. Aggrieved, the applicant
contested the summary dismissal by instituting proceedings before the
Conciliation Board at Mwanza. The Board ordered in its verdict dated 29th
October, 1996 that he be reinstated into his former office but it also imposed on
him a two-days salary deduction. Dissatisfied, the third respondent appealed to the
first respondent against the Board's decision. In his decision dated 12th May, 1998,
the first respondent allowed the third respondent's appeal and reversed the Board's
verdict of reinstatement. The applicant's dismissal from office, subject to payment
of terminal benefits, was confirmed.
After a hiatus allegedly caused by ill-health, the applicant sought and obtained
from the High Court at Mwanza vide Miscellaneous Civil Application No. 38 of
2000 an extension of time to apply for leave to seek prerogative orders against
the third respondent's decision in the labour dispute. Pursuant to the aforesaid
order, on 5th June 2002 the applicant lodged Miscellaneous Civil Application
No. 95 of 2002 in the High Court at Mwanza against the respondents herein for
leave to apply for the orders of certiorari and mandamus. That application came
to naught; it was refused on 13th May, 2003. Desirous of challenging that
decision in this Court, the applicant duly lodged a Notice of Appeal on 20th May,
2003 and applied to the District Registrar of the High Court for a copy of the
proceedings and extracted order.
Thereafter, the applicant duly lodged Civil Appeal No. 21 of 2004 in this Court.
As it turned out, the appeal was struck out on 7th March, 2005 on two grounds:
first, that it was lodged without leave contrary to the dictates of section 5 (1) (c)
of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2002] and, secondly, that it was
accompanied with a defective extracted order signed by the District Registrar
instead of the learned presiding Judge or his successor. Dissatisfied, the
applicant applied to this Court vide MZA Civil Application No. 4 of 2005 for
review of its decision in Civil Appeal No. 21 of 2004 on the ground that he was
denied a hearing. The Court struck out that matter on 22nd May, 2009 upon
sustaining two points of preliminary objection that the matter was misconceived
and that it was time-barred as it also sought a review of the decision of the Court
that it had rendered on 27th January, 2005 in Civil Appeal No. 37 of 2001.
Undaunted, the applicant re-approached the Court on 16th July, 2009 with yet
another application for review - Civil Application No. 76 of 2009 - this time
seeking a review of the previous order of the Court dated 22nd May, 2009 that
struck out his initial application for review. The Court struck out that matter on
25th October, 2013 on the ground that it was barred by the law as there could not
be a review of a decision of the Court on review in the same matter.
560
In the aftermath of the decision of the Court dated 25th October, 2013, the applicant
fell in ill and attended treatment at Sekou Toure Hospital and later at Bugando
Hospital at Mwanza as evidenced by medical reports attached to the supporting
affidavit as Annexure M.17. On 16th December, 2013, he re-approached the High
Court at Mwanza and lodged Miscellaneous Civil Application No. 144 of 2013 for
extension of time within which to lodge a Notice of Appeal and apply for leave to
appeal to this Court from the same decision of the High Court in Miscellaneous
Civil Application No. 95 of 2002. He too sought leave to appeal from the aforesaid
decision of the High Court. For yet another time, luck was not on his side; the High
Court struck out that application on 12th May, 2015 on reason that it was
accompanied by a defective affidavit. Still undeterred, a few days later, on 26th
May, 2015 to be exact, the applicant filed another application in the High Court
(Miscellaneous Civil Application No. 52 of 2015) seeking the same reliefs. All
over again, that quest was barren of fruit; the High Court dismissed it on 31st
January, 2017. Thereafter, the applicant took his pursuit to this Court where he
lodged the present application on 13th February, 2017.
At the hearing of the application, the applicant appeared in person, unrepresented.
On the other hand, Ms. Bibiana Joseph Kileo, learned Senior State Attorney,
appeared for the respondents. Ms. Kileo was assisted by Mr. Laurian Hakim
Kyarukuka, learned advocate, also a principal officer of the third respondent.
Having adopted the Notice of Motion, the supporting affidavits and the written
submissions in support of the application, the applicant urged me to grant the
application on the following grounds: first, that the order of the High Court sought
to be appealed against was tainted with illegalities, irregularities and improprieties
as explained in the supporting affidavit; secondly, that there were sufficient
reasons for the delay; thirdly, that this was a fit case to be resolved by this Court;
and finally, that the High Court contributed materially to the delay and confusion
in the matter by supplying him with a defective extracted order that resulted in his
appeal to be struck out by the Court for incompetence.
The merits of the application apart, the applicant took issue with the
legality of the affidavit in reply deposed and filed by Ms. Kileo for and on behalf
of the first and second respondents. Briefly, he contended as follows: that the said
affidavit was lodged on 27th September, 2018 out of time without leave while the
Notice of Motion had been served on 15th February, 2017; that said affidavit
contained hearsay averments in Paragraphs 3, 5, 10 and 11; that the affidavit
was bad in law for containing opinions in Paragraphs 16 and 17; that the
verification clause was defective for failing to state the name of the deponent
supposedly verifying as to the truthfulness of the depositions in the affidavit; that
the jurat of attestation was defective for not stating clearly whether the attesting
officer knew personally the deponent or that the deponent was introduced to him
by a person known to him; and finally, that the name of the drawer of the affidavit
561
is not indicated therein. He thus urged me to ignore the impugned affidavit. In
support of his submission, he relied on the unreported decisions of the Court in
Simplisius Felix Kijuu Issaka v The National Bank of Commerce Limited, Civil
Application No. 24 of 2003; and Amani Girls Home v. Issack C. Kamela, Civil
Application No. 18 of 2014.
On her part, Ms. Kileo warded off the attack on the affidavit in reply. Very briefly,
she submitted that the said affidavit was duly lodged as she observed that Rule 56
(1) of the Rules does not prescribe any limitation period for filing such a document.
As regards the averments in Paragraphs 3, 5, 10, 11, 16 and 17, she submitted that
they were depositions made on behalf of the first and second respondents and that
they were not hearsay or opinions but proper factual declarations. On the
verification clause, she contended that the said clause was proper because it is not
the requirement of the law for a deponent's name to be specifically restated in the
clause. She further submitted that the jurat of attestation was proper and that the
name of the drawer of the affidavit was clearly indicated. She added that even if
the affidavit was in any way faulty such defect should be ignored as it would cause
no injustice.
Mr. Kyarukuka, then, took turn to address me on the merits of the application.
Having adopted the affidavit in reply and the written submissions he filed, he, at
first, indicated that the respondents felt no need to address the Court on the
substance of the applicant's prayer for an order directing the High Court to supply
him with a copy of the extracted order the subject of his intended appeal. He argued
that the said order was completely unnecessary as the High Court would certainly
supply the said order upon request.
As regards the merits of the quest for condonation of delay, Mr. Kyarukuka
focused on the applicant's conduct and actions after his initial appeal to the Court
(Civil Appeal No. 21 of 2004) was struck out on 7th March, 2005. He blamed the
applicant for wasting eight years in pursuit of worthless and ill-advised
applications for review before this Court instead of re-launching his appeal by
applying to the High Court for extension of time within which to lodge a Notice
of Appeal and apply for leave to appeal. He bolstered his stance by referring to the
decision of the Court in Laurean Rugaimukamu v. The Editor, Mfanyakazi
Newspaper and Another [2001] T.L.R. 79. In that case, the Court dismissed a
reference by an applicant who failed to take appropriate steps to vary a previous
decision of the Court so as to include costs that had not been awarded. The Court
viewed the reference as an abuse of the court process as it was instituted after the
applicant had lodged a series of misguided and useless applications and references
between 1994 and 1996. The learned counsel added that the respondents would
suffer prejudice should the application be granted after the passage of an inordinate
period of time since 1996 when the matter arose. Elaborating, he contended that
the third respondent would be exposed to an enormous liability of paying up a huge
562
amount of monies to the applicant for his subsistence for years since 1996 when
he was summarily dismissed. On this point, he made reference to the decision of
the High Court (Mapigano, J.) in Mobrama Gold Corporation Ltd. v. Minister for
Energy and Minerals and the Attorney General and East African Goldmines Ltd.
as Intervener, [1998] T.L.R. 425. In that case, the High Court cited with approval
a passage from an English case of Castellow v. Somerset County Council [1993] 1
All E.R. 952 thus:
The first is that the rules of Court and the associated rules of
practice, devised in the public interest to promote the
expeditious dispatch of litigation must be observed. The
prescribed time- limits are not targets to be aimed at or
expressions of pious hope but requirements to be met. This
principle is reflected in a series of rules giving the Court a
discretion to dismiss on failure to comply with a time limit. It
is also reflected in the Court's inherent Jurisdiction to dismiss
for want of prosecution. The second principle is that a plaintiff
should not in the ordinary way be denied an adjudication of
his claim on its merits because of procedural default unless
the default causes prejudice to his opponent for which an
award of costs cannot compensate. This principle is
reflected in the general discretion to extend time conferred by
the rules, a discretion to be exercised in accordance with the
requirements of justice. It is also reflected in the liberal
approach generally adopted in relation to amendment of
pleadings. Neither of these principles is absolute. If the first
principle were rigidly enforced, procedural default would lead
to the dismissal of actions without any consideration of
whether the plaintiff's default has caused prejudice to the
defendant. But the Court's practice has been to treat the
existence of such prejudice as a crucial, and often decisive,
matter. If the second principle were followed without
exception, a well-to-do plaintiff willing and able to meet
orders for costs made against him could flout the rules
with impunity, confident that he would suffer no penalty
unless or until the defendant could demonstrate prejudice.
[Emphasis added]
The learned counsel submitted further that the applicant cannot escape blame for
his relentless but ill-advised pursuit of the two review applications by simply
fronting his station in life as a lay person. Referring to the decision of the Court in
Charles Machota Salugi v. Republic, Criminal Application No. 3 of 2011
563
(unreported), he strongly argued, as held in that case, that ignorance of law has
never been an excuse for enlargement of time.
As regards the ground that the application be granted because the order intended
to be appealed against is fraught with illegalities, Mr. Kyarukuka, at first,
acknowledged that, indeed, illegality of a decision can be a good cause for
enlarging a limitation period as held by the Court in Principal Secretary, Ministry
of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185. On the
other hand, he argued that the grounds of illegality complained of by the applicant
are an unviable proposition and that they ought to be rejected. In conclusion, he
urged me to dismiss the application as no good cause was established for
condonation of the delay.
In a brief rejoinder, the applicant argued that he pursued the two applications for
review in exercise of his constitutional right. He denied that the said effort was
worthless or misguided or that it amounted to an abuse of court process. On the
question of illegality of the decision he seeks to appeal against, he contended that
he had indicated in Paragraphs 27 and 28 of the supporting affidavit the questions
he sought to raise to the Court as constituting illegalities in the impugned decision.
He also referred to Paragraphs 23 and 24 of his written submissions where he said
he laid bare the basis of this complaint.
Before dealing with the substance of this application in the light of the competing
submissions, I propose to deal with the legality of Ms. Kileo's affidavit in reply
very briefly. Of the six points on which that affidavit is attacked, the most obvious
is the criticism that the said affidavit does not clearly show whether the attesting
officer knew the deponent personally or whether the deponent was identified to
him by a person whom he personally knew. As held by this Court in Simplisius
Felix Kijuu Issaka (supra) this omission is contrary to the mandatory requirement
of section 10 of the Oaths and Statutory Declarations Act, [Cap. 34 R.E. 2002].
That infraction alone renders the affidavit in reply fatally defective. Accordingly,
I strike it out of the record.
I now proceed to consider the merits of the application. Before I do so, it bears
restating that although the Court's power for extending time under Rule 10 of the
Rules is both broad and discretionary, it can only be exercised if good cause is
shown. Even though it may not be possible to lay down an invariable definition of
the phrase "good cause" so as to guide the exercise of the Court's discretion under
Rule 10, the Court must consider factors such as the length of the delay, the reasons
for the delay, the degree of prejudice the respondent stands to suffer if time is
extended, whether the applicant was diligent, whether there is point of law of
sufficient importance such as the illegality of the decision sought to be challenged:
(see, for instance, this Court's unreported decisions in Dar es Salaam City Council
v. Jayantilal P. Rajani, Civil Application No. 27 of 1987; Tanga Cement Company
564
Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application
No. 6 of 2001; Eliya Anderson v. Republic, Criminal Application No. 2 of 2013;
and William Ndingu @ Ngoso v. Republic, Criminal Appeal No. 3 of 2014). See
also Principal Secretary, Ministry of Defence and National Service v. Devram
Valambhia (supra); and Lyamuya Construction Company Limited v. Board of
Registered Trustees of Young Women Christian Association of Tanzania, Civil
Application No. 2 of 2010 (unreported).
I have given due consideration to all the material on the record in the light of the
oral and written submissions of the parties. The question that I have to determine
is whether there is a good cause for condonation of the delay.
I should begin by observing that in their respective submissions the parties are not
seriously at war about the events that happened before the applicant duly lodged
his Civil Appeal No. 21 of 2004 in this Court. That appeal, as already stated, was
struck out on 7th March, 2005 for incompetence. The respondents, in the main,
assailed the applicant for wasting eight years in a pursuit of what they consider to
be worthless and ill-advised applications for review instead of taking essential
steps to lodge a fresh appeal to this Court by applying to the High Court for
extension of time within which to lodge a Notice of Appeal and apply for leave to
appeal. Before dealing with this criticism, I wish to note that the respondents did
not fault the applicant's conduct and actions following the termination by this
Court of the second application for review on 25th October, 2013. The applicant,
in my view, duly accounted for the period of time that ensued. Initially, he fell ill
and attended treatment at Sekou Toure Hospital and later at Bugando Hospital at
Mwanza as evidenced by the medical reports he produced whose authenticity was
not questioned by the respondents. Between 16th December, 2013 and 31st
January, 2017 he was in the corridors of the High Court at Mwanza in an
unsuccessful bid for extension of time within which to lodge a Notice of Appeal
and apply for leave to appeal to this Court from the impugned decision of the High
Court.
That pursuit was made through two successive applications, that is, Miscellaneous
Civil Application No. 144 of 2013 that was struck out on 12th May, 2015 and
Miscellaneous Civil Application No. 52 of 2015 dismissed on 31st January, 2017.
Thereafter, the applicant promptly knocked at the doors of this Court where he
duly lodged the present application on 13th February, 2017. Given the
circumstances, I must determine whether or not the time the applicant spent in
pursuing the two review applications should be condoned.
After giving due consideration to the arguments on the question at hand, I am, with
respect, unpersuaded that the applicant should bear the blame for pursuing the two
doomed applications for review. As rightly rejoined by the applicant, it was within
his right to seek a review of the decision of the Court that struck out his appeal on
565
7th March, 2005 upon a sustained preliminary objection. While noting that he
moved the Court for review under the inherent or general powers of the Court
under Rule 3 (2) (a), (b) and (c) of the now defunct Tanzania Court of Appeal
Rules, 1979 (defunct Rules) on his perception that he was condemned unheard, I
have no cause to fault his taking of that recourse nor do I doubt his intention in
that matter. In its decision in the first review, the Court might have held that the
said application was both misconceived and time-barred but that was far from
labelling it a useless endeavour or an abuse of court process.
Admittedly, unlike the applicant's institution and prosecution of the first review
application, the second review, also made under the general powers of the Court
prescribed by Rule 3 (2) (a), (b) and (c) of the defunct Rules, obviously might have
left a sour taste in the mouth. I say so because it sought a review of the decision of
the Court handed down on 22nd May, 2009 on the first review. As indicated earlier,
the Court refused it on the reason that "there can be no review of a review in the
same matter." Nonetheless, it seems arguable that under the defunct Rules it was
not settled whether an applicant could seek a further review of a decision of the
Court. It is notable that in its decision (made after the current Rules had already
revoked and replaced the defunct Rules) striking out the second quest for review,
the Court made reference to Rule 66 (7) of the Rules and erased any lingering
doubt regarding the finality of a decision on review, even if that decision was made
upon a sustained preliminary objection. It provides that:
Where an application for review of any Judgment and order
has been made and disposed of, a decision made by the Court
on the review shall be final and no further application for
review shall be entertained in the same matter.
On the whole, it does not seem to me that the applicant's lodgment and prosecution
of the second review was brought as a consequence of mala ftdes. It is significant
that the Court did not, in its decision, suggest or impute bad faith or insincerity on
the part of the applicant.
I recall that Mr. Kyarukuka cited the decision of the Court in Laurean
Rugaimukamu (supra) as his trump card. I stated earlier that in that case, the Court
dismissed a reference by an applicant who failed to take appropriate steps to vary
a previous decision of the Court on the aspect of costs that had not been awarded
to him even though he was the successful party. The Court viewed the reference
as an abuse of the court process as it was instituted after the applicant had lodged
about seven misguided and useless applications and references between 1994 and
1996. It would be helpful to reproduce the relevant passage in that case at page 82
thus:
When the applicant appeared before us he stated that he could
not make the application in time because he assumed that
566
costs had been awarded. He did not become aware of the true
position until the matter came for taxation. This argument
may well be true but it cannot assist the applicant in the
circumstances of this case. We say so because even after
the ruling in the taxation, which was given on 1 June 1994,
and the ruling on the reference therefrom which was given on
12 October 1994, and both of which made it clear that costs
had not been awarded and could not be presumed, the
applicant, for well over a year thereafter, persisted in his
contention to the contrary as evidenced by Civil Reference
Number 8 of 1994 and Civil Application number 24 of 1995.
In reality, therefore, although the truth was brought to his
door, he refused to accept it, preferring instead to rely on
his own wisdom and his ability to have his way. The
resulting delay was therefore not attributable to any
misapprehension of the judgment; it was entirely of the
applicant's own making. His current attempts to shift ground
come after realizing the futility of his position and can only
be described as an abuse of the court process. We are unable
to fault the decision of the single Judge and we refuse the
extension prayed for. [Emphasis added]
In my opinion Laurean Rugaimukamu (supra) is clearly distinguishable from the
instant case. It should be noted that in the former decision the applicant lodged and
pursued a series of futile applications to vary the earlier decision of the Court
which had not granted him costs. When he realized the futility of his effort, he
changed his tack in the end by seeking extension of time while he untruthfully
attributed the delay to the fact that he had assumed all along that costs had not been
awarded. In other words, the delay in taking appropriate recourse did not arise
from a misapprehension of judgment. He deliberately and mischievously shut his
eyes to the truth and, in the process, he wasted time as he walked on a path to a
dead end. That cannot be said of the present applicant. He might have
misapprehended the two reviews as the most appropriate recourses to be taken in
the circumstances instead of re-approaching the High Court for orders necessary
to lodge a fresh appeal but I am unpersuaded that he did so without good faith,
sincerity and diligence. Besides, he cannot be blamed for the fact that the reviews
ran over a period of eight years. It would be rather imprudent to assume that he
had control of or he could influence the speed at which the Court could have dealt
with and disposed of his applications for review. On this basis, I am satisfied that
the entire period of time that the applicant spent pursuing the two applications
qualifies for condonation.
567
As regards the question whether a grant of extension of time will be prejudicial to
the respondents, I recall that Mr. Kyarukuka submitted that the third respondent
would be exposed to an enormous liability to the applicant following the passage
of a long period of time since the latter's dismissal should extension of time be
granted. In all fairness, this submission presents no shred of prejudice. The third
respondent will only be liable at the conclusion of the dispute if the scales of justice
tilt in favour of the applicant. That cannot be said to be a source of prejudice. I am,
therefore, satisfied that no evidence of prejudice has been established.
As the foregoing analysis is sufficient to dispose of this matter, I find no need to
deal with the second limb of the application, which is an argument that extension
of time be was granted on the ground that the impugned decision of the High Court
is fraught with illegalities.
The final issue is the applicant's prayer that the High Court (Mwanza Registry) be
directed to supply him with a properly signed extracted order intended to be
appealed against. This prayer appears to have been made rather perfunctorily and
incautiously. The applicant's submissions provide no legal basis or argument why
I have to direct the High Court's Registry to do its legal duty. I thus agree with Mr.
Kyarukuka that there is no merit in that limb of the application. I would, therefore,
refuse to issue the said order.
The above said, I grant the application in part and reject it partly. The applicant is
hereby granted fourteen days, from the date of delivery of this decision, to file a
Notice of Appeal and an application for leave to appeal. This matter being
essentially a labour dispute for which costs are normally not awarded, I make no
order as to costs.
Application partly granted
PETER MAGHALI v. SUPER MEALS LIMITED

AT DAR ES SALAAM
Division at Dar es Salaam, Wambura, J., dated 19th July, 2019 in Revision No.
648 of 2018)
568
Disciplinary action – employee charged in a court of law but terminated for
misconduct committed during suspension – whether termination was substantively
fair
Termination of employment – employee commits a misconduct which is also a
criminal offence - rules governing termination where conduct amounts to criminal
offence.
Disciplinary hearing – issuance of notice and formal charge – failure to serve
them – consequences thereto.
The appellant was employed by the respondent as Sales and Marketing Officer.
His services were terminated by the respondent on the ground that he had allegedly
misappropriated funds which he had received from a customer of the respondent
as proceeds of sales. He challenged the dismissal in the Commission for Mediation
and Arbitration and later in the High Court of Tanzania, Labour Division but it
was all in vain, hence the present appeal.
Held: i) In its natural and ordinary meaning, section 37 (5) of ELRA forbids an
employer from taking any disciplinary action, be it a penalty, termination or
dismissal, against an employee who has been charged with a criminal offence that
is substantially the same as the misconduct allegedly committed.
ii) Section 37 (5) ELRA does not bar an employer from taking a disciplinary action
first, followed by a criminal action where an employee's conduct amounts to a
disciplinary misconduct as well as a criminal offence; what is forbidden is the vice
versa. In a similar vein, section 37 (5) does not forbid an employer from taking a
disciplinary action against an employee for a transgression substantially different
from the criminal offence facing the employee.
iv) An employer is required to notify the employee of the allegations against him
in a form and language that he could reasonably understand and also to advise him
of the time and date of the proposed disciplinary hearing, giving him a reasonable
opportunity to prepare for the hearing.
v) Dismissal of an employee from his employment without having served him with
any formal charge, which should have detailed the allegations levelled against the
employee is procedurally unfair. The omission compounded by the employer's
inexcusable failure to serve the employee with notice summoning him to the
hearing renders the disciplinary hearing nullity.
Appeal allowed
Cases referred to
(1) Super Meals Limited v. Peter Magali, Revision No. 316 of 2009
(2) I.S. Msangi v. Jumuiya ya Wafanyakazi Tanzania & Another, Civil Appeal
No. 26 of 1991
569
(3) Jimson Security Service v. Joseph Mdegela, Civil Appeal No. 152 of 2019
(4) Fredrick Mizambwa v. Tanzania Ports Authority, Revision No. 220 of
2013; and
(5) TTCL v. lames Mgaya & Three Others, Revision No. 30 of 2011

(1) Rule 13 of the Employment and Labour Relations (Code of Good Practice)
Rules, 2007;
(2) Section 37 (5) of the Employment and Labour Relations Act, [Cap. 366
R.E. 2019]; and
(3) Section 40 (1) (c) of the Employment and Labour Relations Act, [Cap. 366
R.E. 2019].
Mr. Nzowa, for Appellant

Mr. Rutabingwa, for Respondent

Dated 22nd April, 2022
NDIKA, J.A.: The appellant, Peter Maghali, was employed on 1st August, 2005
by the respondent, Super Meals Limited, as Sales and Marketing Officer. His
services were terminated on 13th October, 2008 by the respondent on the ground
that he had allegedly misappropriated TZS. 537,600.00, which he had received
from a customer of the respondent as proceeds of sales. He challenged the
dismissal in the Commission for Mediation and Arbitration (“the CMA”) and later
in the High Court of Tanzania, Labour Division at Dar es Salaam but it was all in
vain, hence the present appeal.
The setting in which the appeal arises is briefly as follows: on 11th July, 2008, the
appellant was suspended from employment over allegations of misconduct. The
letter of suspension (Exhibit Pl) expressly stated that he would be paid no salary
pending the outcome of the case. He was notified further that he was not allowed
to do any company work in office or with the company's customers during
suspension. On 4th September, 2008, the appellant was charged in Criminal Case
No. 1200 of 2008 before the Resident Magistrate's Court of Dar es Salaam at
Kivukoni over the misconduct for which he was suspended. The initial charge
(Exhibit D1), dated 4th September, 2008, consisted of a single count of stealing by
servant. It was particularized that he stole the property of the respondent, his
employer, valued at TZS. 10,058,320.00 between 24th December, 2007 and April,
2008.
570
It was the respondent's case that the appellant was subsequently discovered to have
received during his suspension a total of TZS. 537,600.00 as proceeds of sales
from Kiromo View Hotel, one of the respondent's customers, despite being
interdicted from acting for or on behalf of his employer. Besides, it was alleged
that he did not account for the said sum of money, implying that he
misappropriated the whole of it. In response, the respondent served the appellant
with a letter dated 25th September, 2008 (Exhibit D2) requesting explanation over
the said allegation but the appellant declined to respond. Consequently, the
respondent terminated the appellant's employment vide a letter of 13th October,
2008. He was paid terminal benefits, which included one month's salary, earned
leave pay and outstanding salaries for July through 4th October, 2008 minus TZS.
537,600.00 he had allegedly misappropriated. The total amount paid was TZS.
867,800.00.
The appellant admitted receiving the letter (Exhibit D2) to which he furnished no
response on the ground that it substantially concerned the pending criminal charge
against him. Any response to the letter, he argued, would have supposedly been
prejudicial to his defence in the criminal case. However, he denied having been
summoned to any disciplinary meeting and claimed that he was dismissed from
his employment on the reason of his failure to furnish a reply to the allegation
against him.
As hinted earlier, the CMA dismissed the claim. It found that the appellant's
collection of proceeds of sale amounting to TZS. 537,600.00 during suspension
and without accounting for it was a misconduct and that it constituted a valid
reason for the termination. Furthermore, the CMA ruled that the appellant was
himself to blame for passing up the chance to be heard before the meeting of the
company’s Management prior to the dismissal. This finding was based upon the
appellant's refusal to furnish a reply to the allegation against him on the ground
that the accusation concerned the criminal charge against him, which was not the
case. The CMA also observed that the company's Management that dealt with the
matter was not properly constituted as a disciplinary committee but it viewed the
anomaly as trifling. The High Court substantially upheld the CMA's reasoning,
findings and conclusion. The appeal is predicated on six grounds of grievance as
follows:
1. That the Honourable Judge erred in holding
that the respondent had a valid reason for terminating the
appellant.
2. That the Honourable Judge erred in holding that the appellant
committed an offence while he was on suspension.
3. That, the Honourable Judge erred in holding
that the appellant's failure to submit explanation made it
571
impossible for the respondent to comply with disciplinary
procedures and that the appellant sat on his right to be heard.
4. That, the Honourable Judge erred in holding that the
respondent cannot be said to have denied the appellant the
right to be heard and cannot be held to have contravened rule
13 of the Employment and Labour Relations (Code of Good
Practice) Rules, 2007.
5. That, the Honourable Judge erred for failure to take into
consideration the fact that two members of the Management
meeting which resolved to terminate the services of the
appellant were involved in the issue previously contrary to
rule 13 (4) of the Code of Good Practice and paragraph 4 (2)
of the Schedule to the Code of Good Practice, Guidelines for
Disciplinary, Incapacity and Incompatibility Procedures.
6. That, the Honourable Judge erred for failure to take into
consideration the fact that the Management which resolved
to terminate the services of the appellant was not properly
constituted as a disciplinary hearing.
Messrs. Evans Nzowa and Evodius Rutabingwa, learned advocates, argued the
appeal before us on behalf of the appellant and respondent respectively. We
propose to determine the grounds of appeal in the order they were canvassed by
the learned counsel in their respective written and oral arguments.
Beginning with the complaints in the first and second grounds of appeal,
Mr. Nzowa essentially contended that the alleged misappropriation of TZS.
537,600.00 as reason for the termination was unfounded and unacceptable.
Elaborating, he argued that as the said allegation substantially constituted the
criminal charge against the appellant in the pending criminal case, the respondent
was barred by section 37 (5) of the Employment and Labour Relations Act, [Cap.
366 R.E. 2019] (“the ELRA”) from taking any disciplinary action him until the
criminal case was finalized.
Conversely, Mr. Rutabingwa supported the High Court's finding that the alleged
misappropriation constituted a valid reason for the termination. He argued that the
alleged misappropriation occurred while the appellant, being suspended from
employment, was not allowed to act for and on behalf of the respondent and that
the embezzlement constituted an act of gross dishonesty for which termination is
justifiable pursuant to rule 12 (3) (a) of the Employment and Labour Relations
(Code of Good Practice) Rules, 2007 - Government Notice No. 42 of 2007 (“the
Code”) read together with Item 6 under paragraph 9 of the Schedule to the Code
of Good Practice, Guidelines for Disciplinary, Incapacity and Incompatibility
Procedures (“the Guidelines”). The learned counsel added that section 37 (5) of
572
the ELRA does not forbid termination of employment based on a valid reason that
makes the employment relationship intolerable in terms of rule 12 (2) of the Code.
In resolving the issue at hand, we must first determine the import of section 37 (5)
of the ELRA. It stipulates as follows:
(5) No disciplinary action in form of penalty, termination or
dismissal shall lie upon an employee who has been charged
with a criminal offence which is substantially the same until
final determination by the Court and any appeal thereto.
In its natural and ordinary meaning, the above provision forbids an employer from
taking any disciplinary action, be it a penalty, termination or dismissal, against an
employee who has been charged with a criminal offence that is substantially the
same as the misconduct allegedly committed. Moreover, as rightly held by the
High Court, Labour Division in Super Meals Limited v. Peter Magali, Revision
No. 316 of 2009 (unreported), the above provision does not bar an employer from
taking a disciplinary action first, followed by a criminal action where an
employee's conduct amounts to a disciplinary misconduct as well as a criminal
offence; what it is forbidden is the vice versa. In a similar vein, section 37 (5) does
not forbid an employer from taking a disciplinary action against an employee for
a transgression substantially different from the criminal offence facing the
employee.
In the present case, it is in the evidence that the appellant was suspended on 11th
July, 2008 on the allegation of stealing an assortment of bottled water and that on
4th September, 2008 he was formally charged with stealing by servant as a single
count. The charge sheet (Exhibit D1) indicates clearly that he was alleged to have
stolen the property of the respondent, his employer, valued at TZS. 10,058,320.00
between 24th December, 2007 and April, 2008. It is further in the evidence that the
respondent subsequently discovered that the appellant had received a total of TZS.
537,600.00 as proceeds of sales from Kiromo View Hotel, one of the respondent's
customers. But to be fair to the appellant, Exhibit D2 shows that of the aforesaid
sum, TZS. 257,600.00 was allegedly received on 24th June, 2008 well before his
suspension. It is only the other sum, that is, TZS. 280,000.00, which was
supposedly received on 28th July, 2008 during his suspension.
Nevertheless, it is certain in the evidence that the alleged misappropriation of TZS.
537,600.00 was not part of the initial charge (Exhibit D1) over stealing of an
assortment of bottled water. Thus, the respondent was entitled to take appropriate
disciplinary action against the appellant following its discovery of
misappropriation around 25th September, 2008. In the premises, with respect, we
do not accept Mr. Nzowa’s submission that the respondent was precluded by
section 37 (5) of the ELRA from taking any disciplinary action against the
appellant.
573
We, therefore, hold, as we must, that the alleged failure to account for TZS.
537,600.00 part of which (TZS. 280,000.00) was supposedly received in breach of
one of the conditions of suspension constituted a valid reason for the termination.
We hold that the first and second grounds of appeal are untenable. They stand
dismissed.
We now turn to the grievances in the third and fourth grounds. Submitting on these
grounds, Mr. Nzowa censured the High Court for not holding that the impugned
termination followed a flawed disciplinary process. He contended that the
respondent violated rule 13 (2) of the Code read together with paragraph 4 (3) of
the Guidelines. The learned counsel claimed that the show cause letter (Exhibit
D2) was neither a formal charge against the appellant nor was it a notice to attend
the proposed disciplinary hearing. That the Management Meeting held on 13th
October, 2008 that resolved to terminate the appellant's employment proceeded
without affording him an opportunity to be heard. To buttress his submission, he
cited our decision in I.S. Msangi v. Jumuiya ya Wafanyakazi Tanzania & Another,
Civil Appeal No. 26 of 1991 (unreported) for the principle that an employee must
be heard by the body that ultimately decided his fate. Further reliance was placed
on our decision in Jimson Security Service v. Joseph Mdegela, Civil Appeal No.
152 of 2019 (unreported) on the mandatory requirement on the employer to serve
a formal charge on the employee. The learned counsel also cited two decisions of
the High Court, Labour Division in Fredrick Mizambwa v. Tanzania Ports
Authority, Revision No. 220 of 2013; and TTCL v. lames Mgaya & Three Others,
Revision No. 30 of 2011 (both unreported) for the proposition that the stipulated
disciplinary procedure must be followed and that violation of the procedure can
render a termination unfair.
Replying, Mr. Rutabingwa cast the blame to the appellant, contending that he
unduly refused to respond to the show cause letter and that he declined to appear
before the disciplinary hearing following his being summoned to the hearing.
Citing rule 13 (6) of the Code, he argued that the respondent rightly proceeded
with the hearing in the appellant's absence because he had unreasonably refused to
attend the hearing. It was his further contention that it did not matter that the show
cause letter was neither a formal charge nor a notice of hearing because the
appellant was aware of the hearing but he declined to attend the meeting. He
supported the High Court's view that the appellant sat on his right to be heard as
he was aware of the allegations against him as well as the proposed disciplinary
hearing. Given the appellant's recalcitrance, it was posited that the respondent was
entitled to dispense with the procedural guidelines in terms of rule 13 (11) of the
Code because it could not have reasonably been expected to comply with them.
On the authorities relied upon by the appellant, the learned counsel submitted that
they were all distinguishable on the ground that the appellant in the instant case
574
was accorded an opportunity to be heard at the hearing but he chose to pass up that
chance.
At the outset, it is noteworthy that both learned counsel are at one that rule 13 (2)
of the Code read together with paragraph 4 (3) of the Guidelines enjoin an
employer to notify the employee of the allegations against him in a form and
language that he could reasonably understand and also to advise him of the time
and date of the proposed disciplinary hearing, giving him a reasonable opportunity
to prepare for the hearing. However, the learned counsel are at war on whether the
respondent duly complied with this requirement.
Having taken a long hard look at the facts of the case and considered the
contending submissions, we are persuaded by Mr. Nzowa that the respondent
violated the procedure because it convened and held its Management Meeting that
ultimately dismissed the appellant from his employment without having served
him with any formal charge, which should have detailed the allegations levelled
against him. This omission was compounded by the respondent's inexcusable
failure to serve the appellant with notice summoning him to the hearing. We find
untenable Mr. Rutabingwa's submission that the appellant was aware of the
hearing but he declined to appear. So far as the allegation regarding the
misappropriation of TZS. 537,600.00 was concerned, the appellant was not served
with any document other than the show cause letter (Exhibit D2), which then was
followed up by the letter of termination dated 13th October, 2008. It is too plain for
argument that Exhibit D2 was neither a formal charge nor a notice of hearing. The
appellant may have refused to furnish a reply to the show cause letter but there
was no evidence that he unreasonably refused to attend the disciplinary hearing
thereby justifying the respondent to proceed in his absence in terms of rule 13 (6)
of the Code. Besides, the record of appeal shows no exceptional circumstances
warranting the respondent dispensing with the procedural requirements pursuant
to rule 13 (11) of the Code. It is our view that the learned High Court judge erred
in holding that the appellant1s refusal to reply to the show cause letter frustrated
the respondent's effort to comply with the procedure and that the appellant sat on
his right of hearing. As a consequence, the purported disciplinary hearing was a
futile exercise. We, therefore, find merit in the third and fourth grounds of appeal.
Having held that the disciplinary hearing was a nullity as it was an exercise in vain,
it is hardly necessary to delve into the complaints in the fifth and sixth grounds of
appeal assailing the constitution and propriety of the impugned Management
Meeting as a disciplinary hearing. For, we are satisfied, upon our findings on the
first four grounds, that although the appellant's employment was terminated for a
valid and fair reason, the termination was unfair on procedural grounds as the
purported disciplinary hearing sullied the appellant's right of hearing.
575
In the final analysis, we allow the appeal and proceed to quash and set aside the
High Court's decision. Accordingly, we order that the appellant be paid twelve
months' remuneration as compensation in terms of section 40 (1) (c) of the ELRA.
We make no order as to costs bearing in mind that this matter is a labour dispute
normally not amenable to any award of costs.
Appeal allowed
PETER SAMANYA MSACKY v. CHIEF EXECUTIVE OFFICER

AGRICULTURAL SEED AGENCY AND TWO OTHERS
AT DAR ES SALAAM
(Appeal from decision of the High Court of Tanzania (Labour Division) at
Morogoro, Muruke. J., dated 8th April, 2019 in Misc. Application No. 5 of 2018)
Appeal – limitation of time – failure to file an appeal within 60 days – whether
appeal was competent.
Appeal – record of appeal – failure to serve the other party copies of letter to the
registrar applying for copies of proceedings – whether fatal.
Overriding principle – whether it can be invoked to cure breach of mandatory
rules of procedure.
This appeal originates from the dismissal of an application for extension of time
for filing an application for judicial review in relation to the decision of H. E. the
President of the United Republic of Tanzania dismissing the appellant's appeal
against the decision of the Public Service Commission. Aggrieved by the ruling
dismissing his application, the appellant filed this appeal.
Held: i) Failure to serve on the respondents copies of his letter to the Registrar of
the High Court applying amounts to non-compliance with rule 90 (3) of the Rules,
the remedy of which is to strike out the appeal.
ii) The overriding objective cannot be invoked to disregard non-compliance of the
procedural rules which go to the root/foundation of the case.
iii) The objects behind the enactment of section 3A of the AJA that is; the
amendments were not designed to blindly disregard the rules of procedure which
are couched in mandatory terms. The requirement to serve a copy of the letter to
the respondents is couched in mandatory terms going to the competence of the
appeal in case of non-compliance as it were.
576
Appeal struck out
Cases referred to
(1) Mondorosi Village Council &20 Others v. Tanzania Breweries Ltd & 4
(2) Aliseo Peter Nditi v. KCB Bank Tanzania Limited, Civil Application No.
59 of 2015; and
(3) Puma Energy Tanzania Ltd. v. Ruby Road Ways (T) Ltd, Civil Appeal No.
3 of 2018.

(2) Section 3A of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019]
Ms. Mtulo, Senior State Attorney, Mr. Ruhinda, Senior State Attorney, and Ms.
Senkondo, State Attorney, for Respondent
RULING OF THE COURT

MWANDAMBO, J.A.: The High Court, Labour Division, sitting at Morogoro

dismissed an application for extension of time instituted by the appellant in a ruling
delivered on 8/04/2020. That application was for extension of time for filing an
application for judicial review in relation to the decision of H. E. the President of
the United Republic of Tanzania made on 8/10/2016 dismissing the appellant's
appeal against the decision of the Public Service Commission. That Commission
had sustained the decision of the first respondent; the appellant's erstwhile
employer terminating his employment. Aggrieved by the ruling dismissing his
application, the appellant lodged a notice of appeal on 3/05/2019 and served copies
thereof on all the respondents within the prescribed time. Even though the
appellant applied for copies of proceedings from the Registrar of the High Court
on 6th May, 2020, he did not copy the letter to the respondents neither did he deliver
copies to the respondents as required by rule 90 (3) of the Tanzania Court of
Appeal Rules, 2009 (the Rules). Nevertheless, acting on the appellant's said letter,
on 07/08/2019 the Registrar of the High Court, Labour Division issued a certificate
of delay in terms of rule 90(1) of the Rules excluding 93 days from the computation
of time for instituting the appeal which, but for such execution, should have been
577
instituted within 60 days from the date of the impugned decision. Armed with the
certificate of delay, the appellant instituted his appeal on 24/09/2019.
The appeal was called on for hearing on 13/09/2021 on which date the appellant
appeared in person, unrepresented, ready to prosecute his appeal whereas, Ms.
Alice Mtulo, learned Senior State Attorney, assisted by Mr. Camilius Ruhinda,
also learned Senior State Attorney and Ms. Joyce Senkondo, learned State
Attorney teamed up to resist the appeal.
Ahead of the hearing of the appeal, we heard both the appellant and Ms.
Mtulo on the competence of the appeal in view of the fact that the appellant had
not delivered to the respondents copies of the letter to the Registrar of the High
Court applying for copies of proceedings for the purpose of the appeal as required
by rule 90 (3) of the Rules. The appellant was quick to admit that indeed he did
not deliver copies of his letter to the respondents but the fact that he delivered the
letter to the Registrar of the High Court who issued a certificate of delay based on
that letter, the failure to deliver the copies to the respondents should not be visited
on him. The appellant urged the Court to treat the failure as a minor ailment and
proceed to hear the appeal on its merit.
Ms. Mtulo for her part was emphatic that in so far as the appellant did not comply
with rule 90 (3) of the Rules, the appeal which was instituted beyond 60 days from
the date of the impugned decision was time barred regardless of the certificate of
delay. She thus urged the Court to strike out the appeal. The learned Senior State
Attorney argued that non-compliance with rule 90 (3) of the Rules was not a minor
omission which could be glossed over; it cannot be cured by the overriding
objective as it goes to the root of the appeal.
Upon hearing arguments from the appellant and the learned Senior State Attorney,
there is no dispute on the non-compliance with rule 90 (3) of the Rules; the
appellant's failure to deliver copies of his letter to the respondents within 30 days
from the date of the impugned decision. As the appellant did not comply with rule
90 (3) of the Rules, he ought to have instituted his appeal within 60 days from the
date of the impugned decision; by 8/06/2019 the latest. This is so because he could
not benefit from the exemption for the computation of the period for instituting his
appeal in pursuance of rule 90 (1) of the Rules which stipulates as under:
90.-(1) Subject to the provisions of rule 12 an appeal shall be
instituted by lodging in the appropriate registry within sixty
days of the date when the notice of appeal was lodged .....
Save that where an application for a copy of the proceedings in the High Court has
been made within thirty days of the date of the decision against which it is desired
to appeal, there shall, in computing the time within which the appeal is to be
instituted be excluded such time as may be certified by the Registrar of the High
578
Court as having been required for the preparation and delivery of that copy to the
appellant.
And rule 90 (3) provides:
90-(3) An appellant shall not be entitled to rely on the
exception to sub-rule (1) unless his application for the copy
was in writing a copy of it was served on the Respondent.
What emerges from the foregoing is that the institution of the appeal on 24/09/2019
was way beyond 60 days from 08/04/2019 the date on which the High Court
delivered its ruling dismissing his application for extension of time. There is a
thick wall of authorities on consequences befalling on appeals instituted beyond
60 days for failure to comply with rule 90 (3) of the Rules. For instance, in
Mondorosi Village Council &20 Others v. Tanzania Breweries Ltd & 4 Others,
Civil Application No. 66 of 2017 (unreported), a preliminary objection was taken
against the competence of the appeal instituted beyond 60 days. The record of
appeal did not include a copy of a letter requesting for a certified copy of
proceedings to the Registrar of the High Court. The Court found the appeal time
barred and struck it out having been satisfied that there was no proof of the
appellants having applied for a certified copy of proceedings and served a copy of
their letter to the respondents regardless of the certificate of delay which it found
to have been erroneously issued. See also our decision in Aliseo Peter Nditi v. KCB
Bank Tanzania Limited, Civil Application No. 59 of 2015 (unreported) whose facts
are more or less similar to the facts in the instant application; no indication that the
respondent was copied neither is there any proof of service of the copies of the
letter on the respondents. The Court struck out the appeal instituted beyond 60
days from the date of the impugned decision. A similar consequence must befall
the appellant who has indeed admitted non-compliance with rule 90 (3) of the
Rules; failure to serve on the respondents copies of his letter to the Registrar of the
High Court.
Before winding up this ruling, we wish to remark that we have taken into account
the appellant's quest to gloss over the failure to serve copies of his letter on the
respondents and proceed with the hearing of the appeal. We understood him as
inviting us to invoke the overriding objective under section 3A of the Appellate
Jurisdiction Act [Cap. 141 R.E. 2019] (the AJA). Quite unfortunate to the appellant
we cannot take that route. A similar plea was rejected in Mondorosi Village
Council (supra) on facts which are similar to the instant appeal. In rejecting the
plea, the Court stated emphatically that the overriding objective cannot be invoked
to disregard non-compliance of the procedural rules which go to the
root/foundation of the case. In doing so, the Court took into account the objects
behind the enactment of section 3A of the AJA that is; the amendments were
not designed to blindly disregard the rules of procedure which are couched in
579
mandatory terms. Indeed, the requirement to serve a copy of the letter to the
respondents is couched in mandatory terms going to the competence of the appeal
in case of non-compliance as it were. See also: Puma Energy Tanzania Ltd. v. Ruby
Road Ways (T) Ltd, Civil Appeal No. 3 of 2018 (unreported).
The upshot of the foregoing is that as the appeal was instituted beyond 60 days
contrary to rule 90 (1) of the Rules, it is as it were, incompetent and is hereby
struck out. Given the nature of the dispute resulting into the appeal, we make no
order as to costs. It is so ordered.
Appeal struck out
PHILIMON SIMWANDETE MBANGA v. THE PERMANENT

SECRETARY, MINISTRY OF DEFENCE AND ANOTHER
AT DAR ES SALAAM
(Application for extension of time within which to appeal from the decision of
the High Court, Dyansobera, J., dated 13th October, 2017 in Civil Appeal No.
101 of 2016)
Application for extension of time – discretionary powers of the Court – Scope and
circumstances in which powers can be invoked by the Court.
Application for extension of time – poof of good cause – applicant failed to explain
away the delay of about 66 days – whether applicant failed to show good cause
for the delay
Application for extension of time – technical delay – its meaning thereto.
The applicant was an employee of the respondent. The applicant was charged with
and acquitted of the offence of rape by the District Court. Dissatisfied, the Director
of Public Prosecutions successfully appealed to the High Court resulting in the
applicant being convicted of the offence and sentenced to twenty years in prison.
After completion of the sentence he reported to his employer with a view to being
reinstated, he was told that he had long been terminated. Aggrieved, he filed a suit
in the High Court against his employer; the first respondent, for unfair termination.
The suit was dismissed on a preliminary objection to the effect that it was time
barred. Finally, he filed the present application.
Held: i) The discretionary powers of the court to extend time under rule 10 of the
Rules are very wide and will only be exercisable by the Court in favour of an
580
applicant upon showing good cause for the delay. This is the tenor and import of
rule 10 of the Rules.
ii) It is settled position of the law that, failure by a party to explain away every day
of delay shall not trigger the Court to grant the enlargement of time sought.
ii) Technical delay occurs when a party seeks extension of time after applications
or appeals for which an extension of time is sought were struck out by a court of
law.
Cases referred to
(1) Fortunatus Masha v. William Shija and Another [1997] T.L.R. 154
(2) Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007;
(3) Tanzania Coffee Board v. Rombo Millers Ltd, Civil Application No. 13 of
2015;
(4) Sebastian Ndaula v. Grace Rwamafa (legal personal representative of
Joshua Rwamafa), Civil Application No. 4 of 2014;
(5) Yazid Kassim Mbakileki v. CRDB (1996) Ltd Bukoba Branch & Another,
Civil Application No. 412/04 of 2018; and
(6) Tanzania Bureau of Standards v. Anitha Kaveva Maro, Civil Application
No. 60/18 of 2017
(7) Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd.,
Civil Reference No. 18 of 2006;
(8) Zahara Kitindi & Another v. Juma Swalehe & 9 others, Civil Application
No. 4/05 of 2017;
(9) Yara Tanzania Limited v. DB Shapriya and Co. Limited, Civil Application
No. 498/16 of 2016;
(10) Vodacom Foundation v. Commissioner General (TRA), Civil Application
No. 107/20 of 2017;
(11) Samwel Kobelo Muhulo v. National Housing Corporation, Civil
Application No. 302/17 of 2017; and
(12) Bharya Engineering & Contracting Co. Ltd v. Hamoud Ahmed Nassor,
Civil Application No. 342/01 of 2017.

(1) Rule 10 of the Tanzania Court of Appeal Rules, 2009 - GN No. 368 of
2009
(2) Rule 63 (2) of the Tanzania Court of Appeal Rules, 2009 - GN No. 368 of
2009
581
Mr. Mutayoba, for Applicant
Respondent, Absent
RULING OF THE COURT

MWAMBEGELE, J.A.: By a notice of motion taken out under rule 10 of the

Tanzania Court of Appeal Rules, 2009 - GN No. 368 of 2009 (hereinafter referred
to as the Rules), the applicant applies for extension of time within which to institute
an appeal to the Court. The notice of motion is supported by an affidavit deposed
by Philimon Simwandete Mbanga, the applicant.
When the application was placed before me for hearing on 30.04.2019, Ms.
Joanitha Mutayoba, learned counsel from the Legal and Human Rights Centre,
appeared for the applicant. The respondents, though duly served through the office
of the Solicitor General, did not enter appearance. Given the circumstances, Ms.
Mutayoba snatched the opportunity to pray, and was granted, to proceed with the
hearing in the absence of the respondent in terms of rule 63 (2) of the Rules.
The applicant had earlier filed written submissions in support of the application
which she sought to adopt as part of her oral arguments during the hearing of the
application. Together with defaulting appearance, the respondents never filed any
affidavits in reply.
In the submissions, the learned counsel reiterated what has been deposed in the
affidavit of the applicant in which it is deposed as follows: The applicant was
employed by the Tanzania People's Defence Forces. Sometime in 1994, he was
charged with and acquitted of the offence of rape by the District Court of Mafinga.
Dissatisfied, the Director of Public Prosecutions successfully appealed to the High
Court sitting at Iringa resulting in the applicant being convicted of the offence and
sentenced to twenty years in prison.
Where the applicant was awarded to serve a twenty-year jail term. He completed
his sentence sometime in 2009. On 13.09.2009, he reported to his employer with
a view to being reinstated, he was told that he had long been terminated.
The applicant was not happy with the news broken to him by his employer. He
thus, on 18.05.2016, filed a suit in the High Court against his employer; the first
respondent, for unfair termination as, he claimed, the termination was done
without being heard. On 13.10.2017, that suit was dismissed on a preliminary
objection to the effect that it was time barred. That decision aggrieved him. He
timeously filed a notice of appeal on 19.10.2017 and applied for the relevant
documents for appeal purposes which were, subsequently, supplied to him on
08.03.2018 along with a certificate of delay by the Deputy Registrar of the High
582
Court. He handed the documents to Mr. Evans Robson Nzowa; an advocate at the
Legal and Human Rights Centre to prepare an appeal to the Court. However, the
said Nzowa could not prepare the appeal because in the course of preparation, he
discovered that the letter applying for documents for appeal purposes was not
copied to the respondents. He thus advised him to file the present application as
the intended appeal would be time barred because he would not be entitled to enjoy
an exemption provided for by a proviso to rule 90 (2) of the Rules, hence the
present application which was filed on 18.05.2018.
Ms. Mutayoba, also submitted that the matter involved a technical delay which
warrants the Court to grant the enlargement sought so as to avail the applicant
opportunity to assail the decision of the High Court. She placed heavy reliance on
the decision of the Court in Fortunatus Masha v. William Shija and Another [1997]
T.L.R. 154 to pray that on the ground that the applicant was diligently prosecuting
his case, this application should be allowed.
I have subjected the arguments in the case to the proper sieve it deserves, It should
now be elementary that the discretionary powers of the court to extend time under
rule 10 of the Rules are very wide and will only be exercisable by the Court in
favour of an applicant upon showing good cause for the delay. This is the tenor
and import of the said rule 10 of the Rules. It reads:
The Court may, upon good cause shown, extend the time
limited by these Rules or by any decision of the High Court
or tribunal, for the doing of any act authorized or required
by these Rules, whether before or after the expiration of that
time and whether before or after the doing- of the act; and any
reference in these Rules to any such time shall be construed
as a reference to that time as so extended. [Emphasis
supplied].
The question which pops up at this juncture, is whether the applicant has shown
good cause to warrant the Court exercise its discretion bestowed upon it by rule 10
of the Rules. Admittedly, the applicant has shown, sufficiently to my mind, that he
was diligently pursuing his quest to challenge the decision of the High Court which
dismissed his appeal on account that it was time barred. He timely filed his notice
of appeal and applied for relevant documents for appeal purposes but upon the
same being supplied to him, his advocate was of the view that the intended appeal
would not sail through as there was no proof that the letter to the Deputy Registrar
applying for documents for appeal purposes was copied to the respondents hence
the present application which was filed on 14.05.2018. But the problem that lingers
in this application is that the applicant does not explain away periods of delay.
He does not, for instance, tell the Court when he handed over the documents to
his advocate having obtained the same from the Deputy Registrar of the High
583
Court. Thus, the applicant has not explained away the delay between 08.03.2018
when the certificate of delay was supplied to him by the Deputy Registrar of the
High Court and 14.05.2018 when the present application was lodged. That is a
span of about 66 days. There is a plethora of authorities of the Court which hold
the view that failure by an applicant for extension of time to explain away every
day of delay will not trigger the Court to grant the enlargement of time sought -
see: Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007, and
Tanzania Coffee Board v. Rombo Millers Ltd, Civil Application No. 13 of 2015,
Sebastian Ndaula v. Grace Rwamafa (legal personal representative of Joshua
Rwamafa), Civil Application No. 4 of 2014, Yazid Kassim Mbakileki v. CRDB
(1996) Ltd Bukoba Branch & Another, Civil Application No. 412/04 of 2018 and
Tanzania Bureau of Standards v. Anitha Kaveva Maro, Civil Application No.
60/18 of 2017 (all unreported). In Bushiri Hassan for instance, the Court had an
occasion to underline the dire need for litigants who seek to extend time in taking
actions within which certain steps must be taken, to account for each and every
day of delay in the following terms:
Delay, of even a single day, has to be accounted for otherwise
there would be no point of having rules prescribing periods
within which certain steps have to be taken.
In the instant application, as already alluded to above, the applicant has failed to
explain away the delay of about 66 days; between 08.03.2018 when he was availed
with the certificate of delay and 14.05.2018 when the present application was
lodged. In the premises, he is not entitled to be granted the enlargement of time
sought.
For the avoidance of doubt, Fortunatus Masha will not apply in the instant
situation. That decision of a single Justice of the Court, was follow d in Salvand
K. A. Rwegasira v. China Henan International Group Co. Ltd., Civil Reference
No. 18 of 2006; the decision of a full Court, Zahara Kitindi & Another v. Juma
Swalehe & 9 others, Civil Application No. 4/05 of 2017, Yara Tanzania Limited
v. DB Shapriya and Co. Limited, Civil Application No. 498/16 of 2016, Vodacom
Foundation v. Commissioner General (TRA), Civil Application No. 107/20 of
2017, Samwel Kobelo Muhulo v. National Housing Corporation, Civil Application
No. 302/17 of 2017 and Bharya Engineering & Contracting Co. Ltd v. Hamoud
Ahmed Nassor, Civil Application No. 342/01 of 2017 (all unreported), to mention
but a few, and is authority for what is referred to as technical as being excusable
delay to warrant the Court grant extension of time. It applies when an applicant
seeks extension of time after applications or appeals for which an extension of time
is sought were struck out by a court of law. In Fortunatus Masha, in allowing an
extension, the single Justice of the Court observed at p. 155:
584
… a distinction should be made between cases involving
real or actual delays and those like the present one which
only involve what can be called technical delays in the
sense that the original appeal was lodged in time but the
present situation arose only because the original appeal for
one reason or another has been found to be incompetent and
a fresh appeal has to be instituted. In the circumstances, the
negligence if any really refers to the filing of an incompetent
appeal not the delay in filing it. The filing of an incompetent
appeal having been duly penalized by striking it out, the
same cannot be used yet again to determine the
timeousness of applying for filing the fresh appeal. In fact,
in the present case, the applicant acted immediately after the
pronouncement of the ruling of this Court striking out the first
appeal. [Emphasis supplied].
The decision of the single Justice of the Court in Fortunatus Masha was approved
by the full court in Salvand K. A. Rwegasira wherein we observed:
A distinction had to be drawn between cases involving real or
actual delays and those such as the present one which clearly
only involved technical delays in the sense that the original
appeal was lodged in time but had been found to be
incompetent for one or another reason and a fresh appeal had
to be instituted. In the present case the applicant had acted
immediately after the pronouncement of the ruling of the
Court striking out the first appeal. In these circumstances an
extension of time ought to be granted.
In the case at hand, it was the applicant's advocate who advised to file the present
application when he thought the intended appeal would fall for being time barred
as the applicant would not qualify for the delay as there was no proof that letter
applying for documents to the Deputy Registrar was copied to the respondents. It
was not the court which "punished" the applicant. If anything, it was his advocate.
In the premises, I am disinclined to agree with Ms. Mutayoba that the case is one
to which technical delay may be applicable.
The upshot of the above is that the application is wanting in merits and is hereby
dismissed. As the applicant was on legal aid services, and, as the respondents did
not enter appearance, I make no order as to costs. Order accordingly.
585
REMIGIOUS MUGANGA v. BARRICK BULYANHULU GOLD
MINE
AT MWANZA
(JUMA. CJ., MWARIJA, and NDIKA JJ.A.)
(Appeal from the Ruling and Order of the High Court of Tanzania (Labour
Division) at Mwanza, Nyerere, J., dated 24th July, 2015 in Reference No. 11 of
2015)
Appeal – leave to appeal to the Court of Appeal of Tanzania – ruling which gave
rise to the impugned decision of the Labour Court arose from execution
proceeding preferred under 0. XXI rr.9 and 10 of the CPC - whether the appeal
though originating from the Labour Court requires leave.
Appeal – grounds of appeal to the Court raise matters of fact – appellant wants
the grounds to remain in the memorandum of appeal so that, in the course of
hearing the appeal, the Court invokes its revisional jurisdiction to consider them
- whether appellant’s submission is tenable
This appeal originates from the impugned ruling arising from an execution
proceeding which was preferred under the Civil Procedure Code [Cap 33 R.E.
2002]. The ruling arose from an Application in which the appellant had applied for
execution of the award issued by the Commission for Mediation and Arbitration
(CMA). The appellant was aggrieved by the ruling of the Registrar of the Labour
Court and therefore, unsuccessfully appealed to the High Court hence the appeal
to this Court, the subject matter of the preliminary objection.
Held: i) Section 57 of the Labour Institutions Act, Cao 300, gives a party to “the
proceedings in the Labour Court”, unfettered right to appeal to this Court. The
provision does not restrict that right to the decisions made under any specified
laws. It allows a party to the proceedings conducted in the Labour Court to appeal
regardless of the law under which those proceedings were based. The only
restriction is that the appeal must be on a point of law only. The section is couched
in a way that it accommodates any proceeding conducted in the Labour Court.
ii) It is settled that the law allows a party, who is aggrieved by any appealable
decision arising from the proceedings of the Labour Court, to appeal without
recourse to the provisions of S. 5 (1) (c) of the AJA, notwithstanding that the
proceeding giving rise to that decision was taken under the CPC.
iii) Where the grounds of appeal to the Court are based on matters of fact, the same
offend section 57 of the Labour Institutions Act provision. The irregularity cannot
be cured by turning them into grounds of revision.
586
Cases referred to
(1) Elifazi Ntatega & 3 Others v. Caspian Mining Ltd, Miscellaneous Labour
(2) Chama Cha Walimu Tanzania v. The Attorney General, Civil Application
No. 15 of 2008
(3) Tanzania Teachers Union v. The Chief Secretary & 3 others, Civil Appeal
No. 96 of 2012.
(4) Bulyanhulu Gold Mines (T) Ltd v. Nichodemus Kajungu and 1151 Ors; Civil

(1) Section 57 of the Labour Institutions Act [Cap 300 R.E. 2019]
(2) Section 5 (1) (c) of the Appellate Jurisdiction Act [Cap 141 R.E. 2002]
Mr. Mwantembe, for Respondent
REASONS FOR RULING

Dated 3rd October, 2018
MWARIJA, J.A.: On the 26th day of September 2018, we heard a preliminary

objection filed by the learned counsel for the respondent in this appeal. The
respondent challenged the competence of the appeal by raising a preliminary
objection which consisted of two grounds that:
(i) ... the appeal is incompetent as it was lodged without leave
thus in contravention of section 5(1) (c) of the Appellate
Jurisdiction Act [Cap. 141 R.E. 2002].
(ii) ... the appeal is not grounded on points of law the same
is (sic) incompetent and against the requirement of section 57
of the Labour Institutions Act, 2004.
At the hearing of the preliminary objection on the said date, the appellant appeared
in person, unrepresented while the respondent was represented by Mr. Silwani
Galati Mwantembe, learned counsel. Having heard the submission made by Mr.
Mwantembe in support of the preliminary objection and the appellant's reply
587
submission, we overruled the objection and reserved the reasons for our decision,
which we now give.
As stated above, the objection was based on two grounds. Arguing in support of
the first ground, the respondent's counsel submitted that the appeal is incompetent
because it was filed without the leave of the High Court or of this Court. He relied
on the provisions of S.5 (1) (c) of the Appellate Jurisdiction Act [Cap 141 R.E.
2002] (the AJA).
As regards the application of S. 57 of the Labour Institutions Act [Cap 300 R.E.
2019] (the LIA), which does not make leave to appeal a condition precedent for an
appeal arising from a decision of the High Court (Labour Division) (hereinafter
“the Labour Court”), Mr. Mwantembe argued that, from the nature of the
proceeding giving rise to the impugned decision, that section does not apply. He
contended that, he is alive to the settled position of the law as laid down by the full
bench of the Court in the case of Tanzania Teachers Union v. The Chief Secretary
& 3 others, Civil Appeal No. 96 of 2012 (unreported); that an appeal arising from
a decision of the Labour Court does not require leave. He submitted however that
the position does not apply to the case at hand. The reason, he said, is that the
impugned ruling does not fall within the category of the decisions envisaged under
S. 57 of the LIA.
According to the learned counsel, this is because, the impugned ruling arose from
an execution proceeding which was preferred under the Civil Procedure Code [Cap
33 R.E. 2002]. Elaborating, Mr. Mwantembe submitted that the ruling arose from
Application No. 1 of 2010 in which the appellant had applied for execution of the
award issued by the Commission for Mediation and Arbitration (CMA) in Dispute
No. CMA/SHY/26/2010. The appellant was aggrieved by the ruling of the
Registrar of the Labour Court and therefore, unsuccessfully appealed to the High
Court hence the appeal to this Court, the subject matter of the preliminary
objection. The argument by Mr. Mwantembe is that the ruling, which gave rise to
the impugned decision of the Labour Court, arose from execution proceeding
preferred under 0. XXI rr.9 and 10 of the CPC and thus a decision which is distinct
from those which arise from other labour legislation, including the LIA.
In the circumstances, he said, the applicable provision as regards the present appeal
is S. 5(1) (c) of the AJA. Relying on the words “... except where any other written
law for the time being in force provides otherwise...”, of that section, the learned
counsel argued that because S. 57 of the LIA does not exempt the decisions of the
High Court, made under the CPC from the requirement of leave as stipulated under
S.5 (1) (a) and (c) of the AJA, the appellant ought to have complied with that
requirement.
On the 2nd ground, which was argued in the alternative to the 1st ground, Mr.
Mwantembe submitted that the grounds of appeal contained in the appellant's
588
memorandum of appeal are not based on points of law as required by S. 57 of the
LIA. He contended that, in his grounds of appeal, the appellant challenges the
decision of the High Court on matters of fact, mainly on whether or not the
appellant was paid the correct amount of money as his terminal benefits.
On his part, as he was unrepresented, the appellant did not have much to advance
in his reply by way of legal arguments. Resisting the preliminary objection, he
argued, on the first ground, that leave to appeal is not a requirement under S. 57 of
the LIA and therefore his appeal was properly filed. To support his argument, he
cited the decision of the Labour Court in the case of Elifazi Ntatega & 3 Others v.
Caspian Mining Ltd, Miscellaneous Labour Application No. 34 of 2015 and the
decision of this Court in the case of Chama Cha Walimu Tanzania v. The Attorney
General, Civil Application No. 15 of 2008 (both unreported).
On the second ground, although he did not expressly state so, the appellant agreed
that grounds 1-4 of the appeal are based on matters of fact. He argued however,
that notwithstanding that position, the Court should consider to exercise its
revisional jurisdiction under S. 4(2) the AJA to revise the decision of the Labour
Court with a view of correcting the irregularities complained of in the appeal.
We have duly considered the submission of the learned counsel for the respondent
and the appellant's reply. With regard to the 1st ground, in determining whether or
not the appellant required leave, we find it instructive to reproduce S. 5(1) (a) (b)
and (c) of the AJA which states as follows:
5-(1) In Civil proceedings, except where any other written law
for the time being in force provides otherwise, an appeal shall
lie to the Court of Appeal
(a) against every decree, including an ex parte or preliminary
decree made by the High Court in a suit under the Civil
Procedure Code, in the exercise of its original jurisdiction;
(b) against the following orders of the High Court made under
its original jurisdiction, that is to say-
(i) - (ix) N/A
(c) with leave of the High Court or of the Court of Appeal
against every decree, order Judgment, decision or finding of
the High Court.
The crux of Mr. Mwantembe's argument in this ground is that, since the application
leading to the impugned decision was taken under the CPC, the appeal process is
governed by the AJA. It was the learned counsel's contention further that, since
the ruling was not made by the High Court under its original jurisdiction, the
appellant ought to have obtained leave under S.5 (1) (c) of the AJA before he
instituted the appeal. It was on the basis of that submission that the respondent's
589
counsel urged us to find that, under the circumstances of this case, S. 57 of the LIA
is not applicable.
It is common ground that appeals to this Court against the decisions of the Labour
Court are governed by S. 57 of the LIA which provides as follows:
Any party to the proceedings in the Labour Court may appeal
against the decision of that Court to the Court of Appeal of
Tanzania on a point of law only.
Having applied the ordinary and plain meaning principle of statutory interpretation
to this provision, we are of the view that, although Mr. Mwantembe's arguments
are impressive, we are unable to agree with him that the appellant was required to
obtain leave before he lodged the appeal. The section, gives a party to “the
proceedings in the Labour Court”, unfettered right to appeal to this Court. The
provision does not restrict that right to the decisions made under any specified
laws. It allows a party to the proceedings conducted in the Labour Court to appeal
regardless of the law under which those proceedings were based. The only
restriction is that the appeal must be on a point of law only. The section is couched
in a way that it accommodates any proceeding conducted in the Labour Court.
It is for this reason that, in the case of Tanzania Teachers Union (supra), we stated
as follows:
where there are provisions of written laws like the LIA which
provide the right of appeal that is unfettered by the
requirements of leave to appeal the unfettered provisions
should not be made subject of the requirement of leave under
sections 5(1) (c) of the AJA.
In that case, in which the conflicting decision on the requirement of leave for
appeals originating from the Labour Court were considered and the position settled
as pointed out above, the Court cited with approval the decision in the case of
Bulyanhulu Gold Mines (T) Ltd v. Nichodemus Kajungu and 1151 Ors; Civil
Application No. 37 of 2013 (unreported). The following passage from that decision
was quoted:
we are constrained to emphasize at this stage that a statute
should not, in the absence of any express provision be
construed so that it deprives people of their accrued rights,
and that in fact it is the duty of the court to give sensible
meaning with a view of promoting the employment of such
rights instead of narrowing them down. In other words, we
are duty bound to interpret the law accommodatingly with a
view of expanding its frontiers rather than narrowing
frontiers, the purpose being to see to it that the procedure is
590
reasonable, fair and Just. That war we think, we will have
invested the provision with sound reasoning and content.
On the basis of the considerations made above, it is our view that the section allows
a party, who is aggrieved by any appealable decision arising from the proceedings
of the Labour Court, to appeal without recourse to the provisions of S. 5 (1) (c) of
the AJA, notwithstanding that the proceeding giving rise to that decision was taken
under the CPC.
With regard to the second ground of the preliminary objection, which was argued
in the alternative to the 1st ground, the same is based on the condition imposed by
section 57 of the LIA that an appeal to this Court against a decision of the Labour
Court must be on a point of law only. In his memorandum of appeal, the appellant
has raised the following five grounds of appeal:
1. That, the learned High Court Judge was wrong to hold that
the Application for Execution No. 1 Of 2010, which was
decided by Hon. Gwae, Registrar (as he then was) arose
from Labour Dispute No. CMA/SHY/68/2010 and Revision
No. 2 of 2010.
2. That, the learned High Court was wrong to hold that the
current dispute involved only 5 employees in the CMA at
Shinyanga.
3. That, the learned High Court Judge erred in law and in fact
to hold that the respondent paid repatriation allowance and
subsistence allowance to the appellant on time during the
retrenchment exercise and that the appellant cannot claim that
again.
4. That, the learned High Court Judge erred in law to confirm
the decision of Hon. Gwae, Registrar (as he then was), that
the appellant is entitled to Tshs. 6,953,55/= only.
5. That, the decision of the learned High Court Judge and that
of the Registrar were procured by the respondent illegally, by
fraud and by perjury as the respondent deliberately
suppressed the true facts and manufactured fake ones.
Indeed, grounds 1 - 4 are based on matters of fact. The appellant is challenging the
statement of the factual background of the application for execution as stated by
the learned High Court judge and the quantum of the award made on the appellant's
claims. The appellant did not dispute that the four grounds are not based on points
of law. He submitted however, that the same should be considered by the Court in
the exercise its revisional powers. By that argument, the appellant wants these
grounds to remain in the memorandum of appeal so that, in the course of hearing
591
the appeal, the Court should invoke its revisional jurisdiction to consider them. In
our considered view, that argument is not tenable. S. 57 of the LIA provides in
mandatory terms that an appeal arising from a decision of the Labour Court must
be based on a point of law only.
Now therefore, since grounds 1 to 4 are based on matters of fact, the same offend
that provision. The irregularity cannot be cured by turning them into grounds of
revision. In the circumstances, despite disregarding the 1st - 4th grounds of appeal,
the Memorandum of appeal survives because the 5th ground is based on a point of
law.
It was on the basis of the reasons stated above that, after having heard the parties,
we overruled the preliminary objection for lack of merit.
SECURITY GROUP (T) LTD v. SAMSON YAKOBO AND 10

OTHERS
AT DAR ES SALAAM
(MWARIJA, KOROSSO, and KEREFU, JJ.A.)
(Appeal from the decision of the High Court of Tanzania Labour Division, at Dar
es Salaam, Rweyemamu, J., dated 1st February, 2013, in Revision No. 171 of
2011)
Representative suit – need for leave - whether the complaint filed in the CMA was
bad for want of leave to the 1st respondent to institute the dispute on behalf of the
other ten employees.
Evidence – Whether the evidence tendered in the CMA by the two witnesses was
insufficient to prove the claims for all the respondents since the 1st respondent did
not also testify.
The respondents were employees of the appellant. They were terminated from
employment on retrenchment basis. The respondents were aggrieved by the
termination. They instituted a complained before the Commission for Mediation
and Arbitration. The CMA decided in favour of the respondents. The appellant
was dissatisfied with the award and therefore applied for revision before the High
Court of Tanzania, Labour Division. The application was unsuccessful. The same
was dismissed hence this appeal.
592
Held: i) It is settled that, the documents referred to under sub- rule (2) of rule 5
included the document which institutes a labour dispute, (namely the referral Form
No.1) they amount to pleading synonymous to a plaint which by definition is also
a document.
ii) Unlike in a situation where each person has an individual claim to prove, where
the respondents have a common claim, in such a situation, evidence need not be
adduced by all of them. It will be sufficient if the complained of breach is proved
by the evidence of some of them.
Appeal dismissed
Cases referred to
(1) Elia Kasalile & 20 Others v. The Institute of Social Work, Civil Appeal No.
145 of 2016
(2) National Agricultural Food Corporation (NAFCO) v. Mulbadaw Village
Council & Others [1985] 1lR 88.

(1) Section 38(i) (d) (iii) of the Employment and Labour Relations (Code of
Good Practice) Rules, GN No. 64 of 2007 (GN No. 64 of 2007)
(2) Rule 106(1) of the Tanzania Court of Appeal Rules, 2009,
(3) Section 86 (1) of the Employment and Labour Relations Act,
(4) Rule 12(1) read with Rule 5(2) and (3) of the Mediation Rules,
(5) Order VIII rule 7 of the Civil Produce Code, Cap. 33 R.E, 2002
Messrs. Safari and Othman, for Appellant

Respondents, in person

MWARIJA, J.A: The respondents, Samson Yakobo and 10 others were the
employees of the appellant, Security Group (T) Ltd as Fire Fighters. On
22/12/2010, they were terminated from employment on retrenchment basis
following what was described by the appellant as its inability to meet the
company's operational costs.
The respondents were aggrieved by the appellant's act of terminating them and
therefore complained before the Commission for Mediation and Arbitration (the
CMA), Dar es Salaam Zone contending that they were unfairly terminated. It was
593
their complaint that, since they were not members of the trade union at their place
of work, their termination was not fairly done because no consultative meeting was
held between them and their employer, the appellant. They contended that they
were given the notice of termination before being made aware of the impending
retrenchment exercise. They thus claimed for reinstatement or payment of 20
months' salaries each as compensation for having been unfairly terminated. They
also claimed for payment of their monthly salaries for the whole period between
the date of their termination and the date of reinstatement or payment of the
claimed compensation.
On its part, the appellant disputed the respondent's claims contending that they
were fairly terminated and that they were duly paid their terminal benefits.
According to the Conservation, Hotels, Domestic and Allied Workers' Union
(CHODAWU) field branch leader at the respondents' place of work, Michael
Mhagama who testified before the CMA as DW1, the respondents were given one
months' notice of termination and upon expiry of that notice, they were paid their
terminal benefits. He averred that the cause of the respondents' termination was
the appellant's inability to meet the operational costs due to dwindling state of
income from its business. It was his evidence further that the appellant consulted
CHODAWU before it proceeded to terminate the respondents.
Having heard the dispute, the CMA found that the termination of the respondents
breached the provisions of s. 38(i) (d) (iii) of the Employment and Labour
Relations (Code of Good Practice) Rules, GN No. 64 of 2007 (GN No. 64 of 2007)
which require that, before terminating its employees, the employer should consult
with the employees or the employees' field branch leaders where there is one at the
employees' place of work. The CMA found that the employees were not members
of CHODAWU and that such trade union could not represent them at a
consultative meeting between the respondents and the appellant. On the basis of
those findings, the CMA awarded each of the respondents the amount equal to 12
months' salaries as compensation for having been unfairly terminated.
The appellant was dissatisfied with the award and therefore applied for revision
before the High Court of Tanzania, Labour Division (the Labour Court). The
application was unsuccessful. The same was dismissed hence this appeal. In its
memorandum of appeal, the appellant raised the following six grounds of appeal:
1. That, the High Court Judge grossly erred in law and fact by
finding and holding that at the CMA, the dispute was a
representative suit while there was no evidence of compliance
with the procedure of institution of a representative suit by the
Respondents.
finding and holding that where there are a number of
594
employees with same interest in the matter, any one of them
may appear in a representative capacity if he is mandated in
writing by others while there was no provision of the law
providing to that effect.
3. that the High Court Judge grossly erred in law and fact by
finding and holding that rule 5(2) and (3) of the labour
institutions (Mediation and Arbitration) Rules, GN No. 64 of
2007 mandates one employee to appear on behalf of others
while the said rule permits many employees to authorize any
one of them to sign documents on their behalf.
finding and holding that two witnesses namely Pius Wilfred
Bo1kombe and Stephen Jacob, properly testified for all the
Respondents while there was no any evidence that the said
Pius Wilfred Boikombe and Stephen Jacob were
authorized/mandated by other Respondents to testify on their
behalf.
proceeding with the hearing of the revision application
without first disposing of the preliminary objection raised by
the Appellant.
finding and holding that the Honourable Arbitrator properly
analyzed the evidence.”
At the hearing of the appeal, the appellant was represented by Mr. Emmanuel
Safari who was being assisted by Mr. Othman Omary Othman, learned advocates
while on their part, the respondents entered appearance through the 1st respondent,
Samson Yakobo. They did not have the services of a counsel.
The learned counsel for the appellant had earlier on 1/8/2016 filed written
submission in support of the appeal in compliance with Rule 106(1) of the
Tanzania Court of Appeal Rules, 2009, (the Rules). Similarly, in compliance with
Rule 106(8) of the Rules, on 8/9/2016 the respondents filed their written
submission in reply to the appellant's submission.
In his written submission, Mr. Safari dropped the 5th ground and proceeded to
submit on the rest of the grounds of appeal.
From the submission made by the learned counsel for the appellant and the reply
by the 1st respondent, the immediate issue for our determination, which arises from
the 1st ground of appeal, is whether or not the complaint filed in the CMA was bad
595
for want of leave to the 1st respondent to institute it on behalf of the other ten
employees.
In his submission, the appellant's counsel was firm that, like in the case of a
representative suit, the 1st respondent should have sought and obtained leave to file
the complaint on behalf of the other ten employees. According to the learned
counsel, that application should have been brought under rule 29(1) (c) and (2) of
GN No. 64 of 2007 which provides as follows:
29-(1) Subject to Rule 10, this Rule shall apply, to any of the
following-
(a) Condonation joinder, substitution, variation or setting
aside an award;
(b) Jurisdictional dispute;
(c) Other applications in terms of these Rules.
(2) An application shall be brought by notice to all persons
who have an interest in the application.
It is not disputed that the governing provision as regards institution of a labour

dispute in the CMA is rule 12 of GN No. 64 of 2007 which states as follows:
12(1) A party shall refer a dispute to the Commission for
Mediation by completing and delivering the prescribed form
(“the referral document”)
(2) The referring party shall-
(a) sign the referral document in accordance with rule 5.
(b) attach to the referral document a written proof in
accordance with rule 6 that the referral document was duly
served on the other parties to the dispute.
(c) if the referral document is filed out of time, attach an
application for condonation in accordance with rule 10.
(3) The Commission shall refuse to accept a referral document
until the requirements of sub-rule (2) has been complied with
Rule 5 of GN No. 64 of 2007 allows one of the complainants to sign a document

on behalf of others who are jointly involved in a complaint. That provision states
as hereunder:
5 (1) A document shall be signed by the party or any other

person entitled under the Act or these rules to represent
that party in the proceedings.
596
(2) Where proceedings are jointly instituted or
opposed by more than one employee, documents may be
signed by an employee who is mandated by the other
employees to do so.
(3) Subject to sub rule (2) a list in writing, of the
employees who have mandated a particular employee to sign
on their behalf must be attached to the document. The list
must be signed by the employees whose names appear on it.
The argument by Mr. Safari was that the provisions of rule 5 of GN. No. 64 of
2007 reproduced above, are restricted to signing of documents involved in a
dispute before the CMA not the right of appearance by one of the employees on
behalf of others in a labour dispute. In his written submission, the learned counsel
stated as follows:
Our contention is based on ground that the Judge wrongly
interpreted the law. The Judge was supposed to give plain
meaning to the words of the applicable law but to the contrary
she did not on ground that the said rule 5(2) and (3) of the
labour Institutions (Mediation and Arbitration) Rules,, GN.
No. 64 of 2007 which the Judge relied with does not provide
for the right to appear but for right to sign documents on
behalf of others.
The Court had the occasion of considering the issue arising from interpretation of
rule 5 of GN. No. 64 of 2007 in the case of Elia Kasalile & 20 Others v. The
Institute of Social Work, Civil Appeal No. 145 of 2016 (unreported). In that case,
the appellants had similarly filed a complaint against the respondent in the CMA
challenging their termination on the ground that it was unfairly made. They filed
the complaint through CMA F1 signed by the 1st appellant, Elia Kasalile. The list
of names of the other employees with their signatures appended thereto was
attached to the CMA F1. By way of a counterclaim, Mr. Safari, learned counsel
who appeared for the respondent in that case, challenged the competence of the
complaint contending inter alia; one, that dispute was not referred by all the
appellants but only the first appellant and two, that the first appellant was not
mandated by the other 20 employees to file the complaint on their behalf because
leave to appear in a representative capacity was not sought and obtained.
Having considered the provisions of s.86 (1) of the ELRA read together with rules
12(1) and 5(2) and (3) of GN. No. 64 of 2007, the Court held as follows:
…since the dispute at the CMA was filed by the appellants
in accordance with section 86 (1) of the ELR Act, Rule 12(1)
read with Rule 5(2) and (3) of the Mediation Rules, then it
597
involved all the 21 appellants. As such, we do not think that
the contention by Mr. Safari that the appellants ought to have
filed an application for a representative suit under Order VIII
rule 7 of the Civil Produce Code, Cap. 33 R.E, 2002 can stand.
The reason is clear that, there are specific provisions under
the labour laws which provided for the mode of filing of
labour disputes involving more than one employee.
In his submission before us, the appellant's counsel insisted that rule 5 of GN. No.
64 of 2007 allows only the signing of documents but does not vest an employee
with the right to appear on behalf of others. With respect, we do not agree with the
learned counsel's interpretation. In our considered view, the documents referred to
under sub- rule (2) of rule 5 included the document which institutes a labour
dispute; a pleading synonymous to a plaint which by definition is also a document.
In the book, Civil Procedure, 6th Ed., Eastern Book Company by Justice
C.K Takwani, a plaint is defined as:
… a statement of claim, a document, or a memorial by the
presentation of which a suit is instituted…[Emphasis added]
For the reason state above, we do not find merit in the first ground of appeal.
The other grounds of appeal need not detain us much. The finding on the 1st ground
above answers also the 2nd and 3rd grounds of appeal. The learned High Court
Judge did not misinterpret the provisions of rule 5(2) and (3) of GN. No. 64 of
2007. As held in the case of Elia KasaIile and 20 Others (supra) when read
together with s. 86(1) of the ELRA and rule 12 of GN No. 64 of 2007, that rule
provides for the procedure of filing a labour dispute in a representative capacity.
With regard to the 4th ground of the appeal, we do not, with respect, agree with the
appellant's counsel that the learned High Court Judge erred in failing to find that
the evidence tendered in the CMA by the two witnesses (PW1 and PW2) was
insufficient to prove the claims for all the respondents. We agree with the learned
Judge that since the evidence was from the witnesses who were parties to the
complaint (the complainants), the same was sufficient to prove the claim even
though their representative, Samson Jacob did not testify.
The crux of the contention by the appellant's counsel was the propriety or
otherwise of the state of the complaint; whether or not it was brought as a
representative suit. After that issue had been answered in the affirmative, there is
no gainsaying that the evidence may be given by some of the complainants, not
necessarily all of them. We are aware of the case of National Agricultural Food
Corporation (NAFCO) v. Mulbadaw Village Council & Others [1985] 1lR 88. In
that case which was filed in the form of a representative suit, only five plaintiffs,
who were authorized by the other 61 plaintiffs to represent them, gave evidence.
598
The Court observed that in order to prove their claims, each of the 66 plaintiffs
ought to have testified. The particular facts of that case are however, different from
the facts of the present case. In the said case, each of the plaintiffs claimed
ownership of separate farms within the disputed land in which they complained
that NAFCO had trespassed.
In this case however, unlike in a situation where each person has an individual
claim to prove, the respondents had a common claim and in such a situation,
evidence need not be adduced by all of them. Their complaint was against the
appellant's breach of the law in terminating them. It will be sufficient if the
complained of breach is proved by the evidence of some of them. For these
reasons, we do not find merit in the 4th ground of appeal.
On the 6th ground, the finding of the Labour Court which is being challenged by
the appellant appears in the impugned decision at page 115 of the record of appeal
as follows:
The relevant law, that is section 38(1) (d) (iii) of the ELRA
requires that the employer must consult the employees where
such employees are not members of a union and there is no
union which is a bargaining agent of employees in the given
work premises. Both the above facts were not disproved by
the applicant in this case. As there was no other evidence of
consultation adduced by the applicant I find no basis of
faulting the arbitrator's conclusion on the issue.
The argument by Mr. Safari was that there existed a trade union at the respondents'
place of work, that is; CHODAWU. In their evidence however, PW1 and PW2
stated that they were not aware of existence of that trade union. Furthermore, in
his evidence, (DW1) who described himself as the leader of CHODAWU, did not
state anywhere in his evidence that the employees were involved at any stage of
the retrenchment exercise. The substantial part of his evidence at page 25 of the
record of appeal is as follows:
On 19th November, 2011 the meeting was done on the amount
of severance package for the retrenched employees. The
respondent said that the cause of termination is loss of the
contracts from the customers. Therefore, the respondent
company failed to accommodate the employees. [Emphasis
added]
So, even if there would have been evidence that the respondents were members of
CHODAWU, from the evidence of DW1, the consultation envisaged under s.
38(1) (d) (iii) of the ELRA was obviously not done. What can be gathered from
the evidence of DW1 is that he held a meeting with the appellant to determine the
599
amount of severance allowance after the respondents had been retrenched. In the
circumstances therefore, we do not find any sufficient reason to fault the finding
of the learned High Court Judge. This ground is also devoid of merit.
On the basis of the forgoing reasons, this appeal must fail. The same is hereby
accordingly dismissed in its entirety. Since the appeal arose from a labour dispute,
we make no order as to costs.
Appeal dismissed
SERENITY ON THE LAKE LTD v. DORCUS MARTIN NYANDA

ATMWANZA
(MZIRAY, MWAMBEGELE, and KWARIKO, JJ.A.)
(Appeal from the decision of the High Court of Tanzania (Labour Division) at
Mwanza, Nyerere, J., dated 7th November, 2017 in Revision No. 24 of 2017)
Termination of employment – fixed term contract – contract renewed after every
three months for four years - whether principles on fair termination apply to the
contract - section 35 of the ELRA Termination of employment – fixed term contract
– the manner in which the contract may come to an end.
The respondent was employed as a housekeeper on a fixed term of three months
which was being renewed from time to time by the appellant. During her service,
there occurred loss of money and a cell phone in the room of one of the customers
under her supervision. The respondent being the supervisor in that part was held
accountable. Later on, she was notified to attend a disciplinary meeting to
deliberate on that issue which was termed as misconduct on her part. At the end of
the hearing, it was found that the respondent was habitually responsible for the
loss of customers' properties. The was terminated from employment. Dissatisfied
she filed a dispute before the CMA complaining of unfair termination. The
Arbitrator who entertained the dispute found that the complaint was baseless and
dismissed it. Upon being aggrieved by that award, the respondent filed revision
before the High Court. The High Court found that the respondent's termination was
unfair. The appellant was aggrieved hence, this appeal.
Held: i) The principle of unfair termination is inapplicable in cases of fixed
contract especially where the contract of employment is for a period of less than
six months.
600
ii) The law is clear that, where the contract of employment is for a fixed term, the
contract expires automatically when the contract period expires unless the
employee breaches the contract before the expiry in which case the employer may
terminate the contract. On the other hand, the employer must have a fair reason to
terminate the contract in case of the indefinite contract of employment and must
follow a fair procedure in that regard.
Appeal allowed
Cases referred to

Practice) GN No. 42 of 2007
Mr. Mkungu, for Appellant


KWARIKO, J.A.: The appellant having been aggrieved by the decision of the
High Court of Tanzania (Labour Division) (Nyerere, J.) in Revision No. 24 of 2017
dated 07/11/2017, filed this appeal with the following three grounds:
1. That, in view of the fact that the respondents’ termination
from employment was grounded on misconduct, the
learned High Court Judge erred in holding that the said
termination was grounded on incapacity or poor work
performance;
2. That, since the respondent's termination was fair both in
terms of the ground in support thereof and proper
procedure followed by the appellant in effecting the said
termination, the award by High Court of Tshs.
2,016,000/= as compensation for twelve months' salary
was not justified; and
3. That, since the respondent had worked for the appellant
for a period of less than 6 months, she had no locus standi
601
both before the Commission for Mediation and
Arbitration and the High Court.
In order to appreciate the decision, we are going to make herein below, we find it
appropriate to recapitulate the facts of the case which led to this appeal. They are
as follows. Before the Commission for Mediation and Arbitration (the CMA), the
evidence unfolded from the appellant was that, the respondent was employed as a
housekeeper on a fixed term of three months which was being renewed from time
to time from March, 2013 to November, 2016. The evidence on record shows that
the respondent was a supervisor in a housekeeping section of the appellant's tourist
hotel which was operating seasonally. That sometime in 2016 there occurred loss
of USD 700 and a cell phone in the room of one of the customers under her
supervision. The respondent being the supervisor in that part was held accountable.
However, because at that time the respondent was pregnant, the appellant's
management found it wise to defer the matter until the respondent completed her
maternity leave. When she returned in November, 2016, she was notified to attend
a disciplinary meeting to deliberate on that issue which was termed as misconduct
on her part.
At the end of the hearing, it was found that the respondent was habitually
responsible for the loss of customers' properties. She was found guilty of
misconduct thus the decision was made to terminate her from employment. She
was terminated and served with termination letter on 30/11/2016. On her part,
while she did not deny the facts about her employment with the appellant, she
complained that she did not admit responsibility on the loss of USD 700 and a cell
phone, was not given written notice to attend disciplinary committee and was not
paid anything after the termination. That is why she filed the dispute before the
CMA complaining of unfair termination. She prayed to be paid overtime, leave,
public holiday's allowances and severance pay.
The Arbitrator who entertained the dispute found that the complaint was baseless
and dismissed it.
Upon being aggrieved by that award, the respondent filed revision before the High
Court. The High Court found that the respondent's termination was unfair as there
was no valid reason for it and the procedure for termination was not followed. The
Arbitrator's finding was quashed and set aside.
The High Court dismissed the respondent's claims for overtime and public
holiday's allowance and awarded compensation of Tshs. 2,016,000/= being twelve
months' salary for unfair termination, Tshs. 168,000/= being one month's leave
salary and Tshs. 156,800/= being severance allowance for four years.
602
During the hearing of the appeal, the appellant was represented by its Principal
Officer one Bernard Mkungu while the respondent appeared in person
unrepresented.
Arguing for the first ground of appeal, the appellant submitted that the respondent
was terminated for misconduct as opposed to incapacity or poor work performance
as it was decided by the High Court. The appellant contended that before the
respondent's termination all legal requirements were followed as provided for in
the Employment and Labour Relations Act No. 6 of 2004 (the Act). The appellant
reiterated the procedure taken leading to the respondent's termination as it has been
shown earlier in this judgment. Thus, the respondent did not appeal against the
appellant's decision instead she took the matter to the CMA.
In the second ground of appeal, the appellant argued that the High Court erred to
award compensation of twelve months' salary to the respondent because the
termination procedures were followed by the appellant.
As regards the third ground of appeal, the appellant submitted that, because the
respondent's contract of employment was for a fixed term of three months
renewable, the issue of unfair termination is not applicable to her as per section 35
of the Act. The appellant argued further that the High Court erred in law to apply
the Employment and Labour Relations (General) Regulations GN. No. 47 of 2017
in respect of this case because the same became operational long after the
termination of the respondent.
In her reply the respondent complained that, the allegations which saw her out of
work were unfairly leveled against her. That, the appellant ought to have
questioned her misconduct when it allegedly occurred and not waiting until she
completed her maternity leave. That, she did not fail to perform her work.
In the second ground of appeal, the respondent contended that she was entitled to
the award of twelve months' salary because the termination was abrupt.
Arguing the third ground of appeal, the respondent repeated that her contract of
employment was for three months renewable which continued for four years
without termination. That she signed the last contract sometime in 2015. She
contended that the appeal was without merit and prayed it to be dismissed.
In rejoinder, the appellant contended that the issue of misconduct could not be
pursued when it happened owing to the respondent's pregnancy. That the High
Court award was illegal. Lastly, that, the appellant's hotel operates seasonally and
the respondent's contract was for three months renewable for four years. He
concluded that, the respondent never complained that she worked without a
contract of employment.
Having considered the opposing submissions from the parties, we find it
convenient to start dealing with the third ground of appeal which raises a point of
603
law. The appellant argued that because the contract of employment between the
parties herein was for a fixed term of three months thus less than six months
prescribed by section 35 of the Act, the principle of unfair termination relied upon
by the respondent is not applicable in this case. Section 35 of the Act provides:
Sub-Part E- Unfair termination of employment
35. The provision of this Sub-Part shall not apply to an
employee with less than 6 months' employment with the
same employer, whether under one or more contracts.
Having pondered over this point, this Court is in agreement with the appellant that,
the principle of unfair termination is inapplicable in this case because the contract
of employment was for a period of less than six months. Further, the law under
Rule 4 (2) of the Employment and Labour Relations (Code of Good Practice) GN
No. 42 of 2007 (the Code) says:
Where the contract is a fixed term contract, the contract
shall terminate automatically when the agreed period
expires, unless the contract provided otherwise.
Whereas, Rule 8 (2) (a) and (c) of the Code provides:
(2) Compliance with the provisions of the contract relating
to termination shall depend on whether the contract is for
a fixed term or indefinite in duration. This means that:
(a) where an employer has employed an employee on a fixed
term contract, the employer may only terminate the
contract before the expiry of the contract period if the
employee materially breaches the contract.
(c) where the contract is for an indefinite duration, the
employer must have a fair reason to terminate and
follow a fair procedure. (emphasis supplied)
Therefore, the law is clear that, where the contract of employment is for a fixed
term, the contract expires automatically when the contract period expires unless
the employee breaches the contract before the expiry in which case the employer
may terminate the contract. On the other hand, the employer must have a fair
reason to terminate the contract in case of the indefinite contract of employment
and must follow a fair procedure in that regard.
The foregoing proves that the respondent did not have cause to complain that she
was unfairly terminated because she was not covered by the law on that. In that
regard, the High Court erred in fact when it found that the parties were in an
604
indefinite term of contract because the appellant had failed to furnish the
respondent with the written particulars as provided under section 15 of the Act.
This was not the case because the respondent personally confirmed that she had
been signing a contract of employment of three months renewable for four years
in aggregate. We are of the considered view that even if Rule 11 of GN No. 47 of
2017 was in place at the material time, it could not apply in respect of the
respondent. This is because she was not in the managerial cadre. Neither was she
a professional. For clarity, we find it apt to reproduce Rule 11; it provides:
A contract for a specified period referred to undersection
14 (1) (b) of the Act, shall not be for a period of not less
than twelve months.
Whereas section 14 (1) (b) of the Act reads:
A contract with an employee shall be of the following
types-
(b) a contract for a specified period of time for
professionals and managerial cadre.
The High Court recognized the enactment of this law, but did not apply it as
claimed by the appellant.
The foregoing analysis proves that, the dispute between the parties to this appeal
was illegally entertained before the CMA and its resultant revision proceedings
before the High Court. This ground of appeal has merit. The decision in the third
ground of appeal is sufficient to dispose of this matter, but for clarity, we find it
apposite to decide on other grounds of appeal as well.
As regards the first ground of appeal, we are in agreement with the appellant that,
the High Court erred when it held that the respondent's employment was
terminated on the ground of incapacity and poor work performance. This is so
because it is not disputed by the parties that the employment of the respondent was
terminated when she was found guilty of misconduct after she failed to ensure
safety of customers' properties which led to loss of a hotel guest's money and cell
phone. This ground has merit.
In the second ground of appeal, we have gone through the evidence on record and
found that the appellant followed proper procedure before the respondent was
terminated. The respondent was given notice to appear before the disciplinary
committee on 21/11/2016 which fact she did not dispute. The hearing was done on
26/11/2016 being beyond 48 hours after the notice of hearing which complied with
Rule 13 (3) of the Code. The respondent was further given opportunity to be heard
before the committee as per Rule 13 (5) of the Code and did not say she needed
any representation or witness during the hearing. The respondent was furnished
with the decision taken in terms of Rule 13 (8) of the Rules.
605
Therefore, the appellant followed legal procedure before the termination and hence
the respondent was not entitled to the compensation awarded by the High Court.
This ground of appeal has merit.
In the upshot, for the reason stated earlier, we find the present appeal meritorious
and allow it. Consequently, we quash the decision and set aside the award of the
Court. This being a labour matter, we can make no order as to costs.
Appeal allowed
SERENITY ON THE LAKE LTD v. DORCUS MARTIN NYANDA

AT MWANZA
(MZIRAY, MWAMBEGELE, and KWARIKO, JJ.A.)
CIVIL REVISION NO. 1 of 2019
(From stay of execution Order of the Deputy Registrar of the High Court of
Tanzania (Labour Division) at Mwanza, Kingwele, DR., dated 31st October,
2018, in Miscellaneous Labour Application No. 18 of 2018)
Stay of execution – notice of appeal – whether the High Court has jurisdiction to
issue an order of stay of execution while there is a notice of appeal pending in the
Court.
Jurisdiction - Stay of execution – jurisdiction of the Deputy Registrar – whether
the Deputy Registrar has jurisdiction to hear and order for stay of execution of a
decree emanating from revision proceedings of the Labour Court.
This revision arises from an Order of the Deputy Registrar of the High Court of
Tanzania, Labour Division, compelling the applicant to deposit money to the court
as security for the due performance of a decree in an application for stay of
execution involving parties to this application. The order was made during the
pendency of a Notice of Appeal to this Court. The main issue before the Court was
on the legality of the order for stay of execution issued while there was a Notice
of Appeal to this Court.
Held: i) The Deputy Registrar, of the High Court (Labour Division) does not have
jurisdiction to hear and order stay of execution and at the same time order the
applicant to deposit a sum of mony. to that court as security for the due
606
performance of the decree in a Revision matter while already there was a Notice
of Appeal filed in this Court. That order has no backing of the law.
ii) What the Registrar is supposed to do after realizing that there is a pending
appeal before this Court is to halt the proceedings and pave way for the appeal
process to proceed.
iii) By entertaining the application for stay of execution while there is a pending
notice of appeal lodged in this Court, the Deputy Registrar slips in an error for lack
of jurisdiction. The order issued is therefore unlawful.
iv) The Deputy Registrar can act on the powers stipulated under Order XLIII (i) of
the Civil Procedure Code in giving an order for stay of execution, however, under
section 91(3) of the Employment and Labour Relations Act, it is the court which
is vested with that power. When section 2 is read together with section 50 of the
Labour Institutions Act, it is obvious that the Registrar does not feature anywhere
in the composition of the Labour Court.
v) The Civil Procedure Code as per Regulation 55 (1) cannot be invoked while
there are specific provisions in the Labour Legislation which specifically state that
stay of execution has to be done by the court. It means that the Deputy Registrar
not forming part of the court has no jurisdiction to entertain and determine an
application for stay of execution of a decree originating from the High Court
(Labour Division) in the exercise of its revision jurisdiction. The Registrar cannot
assume jurisdiction which he does not possess.
Cases referred to
(1) Tanzania Electric Supply Company Limited v. Dowans Holdings S. A.
(Costa Rica) and Dowans Tanzania Limited (Tanzania), Civil Application No.
142 of 2012
(2) Awiniel Mtui and Three Others v. Stanley Ephata Kimambo (Attorney for
Ephata Mathayo Kimambo), Civil Application No. 19 of 2014
(3) Aero Helicopter (T) Ltd. v. F. N. Jansen [1990] T.LR. 142.

(1) Order XLIII (1) (i) of the Civil Procedure Code [Cap. 33 R.E. 2019]
(2) Section 91(3) of the Employment and Labour Relations Act,
(3) Section 50 of the Labour Institutions Act
(4) Section 4(3) of the Appellate Jurisdiction Act, Cap. 141
Mr. Mkungu, for Applicant

607
RULING OF THE COURT
MZIRAY, J.A.: By an Order of the Deputy Registrar (O. H. Kingwele) of the

High Court of Tanzania (Labour Division) Mwanza Sub-Registry dated
31/10/2018, the applicant Serenity on the Lake Ltd. was compelled to deposit a
sum of Tshs. 2,500,000/= to that court as security for the due performance of the
decree in Revision No. 24 of 2017 delivered on 7/11/2017 in an application for
stay of execution involving parties to this application. That order was made during
the pendency of a Notice of Appeal to this Court.
On 11/12/2018 when Civil Application No. 559/08 of 2017 involving parties to
this application was called on for hearing, this Court raised its concerns on the
legality of the order for stay of execution issued by the Deputy Registrar of the
High Court while there was a Notice of Appeal to this Court. It doubted the said
Order. In exercise of its powers for revision in terms of section 4(3) of the
Appellate Jurisdiction Act, Cap. 141 of the Laws, the Court ordered for a revision
suo motu to be opened to look into the legality of the Order of the Deputy Registrar
dated 31/10/2018 in Miscellaneous Labour Application No. 18 of 2018. This
prompted the opening of this Revision suo motu.
When the application came before us for hearing on 9/4/2019, Mr. Bernard
Mkungu, the Principal Officer of Serenity on the Lake Ltd., appeared for the
applicant while the respondent, Ms. Darcus Martin Nyanda, appeared in person.
When invited to express his views on the order which prompted these proceedings,
Mr. Mkungu was quick to comment that the order was unlawful on account of the
fact that it was issued during the pendency of a Notice of Appeal to this Court. On
the part of the respondent, being a layperson, had no comment to make. She left
the matter for the Court to decide.
On our part, we think that two issues call for determination. One, whether the High
Court was competent to issue an order of stay of execution while there was a
Notice of Appeal pending in this Court. Two, whether the Deputy Registrar of the
High Court (Labour Division) was seized with jurisdiction to hear and order for
stay of execution of the decree in Revision No. 24 of 2017.
In answer to the first issue, we have no other good words to give than those stated
by this Court in Tanzania Electric Supply Company Limited v. Dowans Holdings
S. A. (Costa Rica) and Dowans Tanzania Limited (Tanzania), Civil Application
No. 142 of 2012 (unreported) stating that:
It is settled law in our jurisprudence which is not disputed by
counsel for the applicant that the lodging of a notice of appeal
608
in this Court against an appealable decree or order of the High
Court commences proceedings in the Court We are equally
convinced that it has long been established law that once a
notice of appeal has been duly lodged, the High Court
ceases to have jurisdiction over the matter. [Emphasis
ours].
Similar position was taken by this Court in Awiniel Mtui and Three Others v.
Stanley Ephata Kimambo (Attorney for Ephata Mathayo Kimambo), Civil
Application No. 19 of 2014 (unreported) in which the Court held that:
...once a notice of appeal has been duly lodged, the High
Court ceases to have Jurisdiction over the matter.
See also Aero Helicopter (T) Ltd. v. F. N. Jansen [1990] T.LR. 142.
On the strength of the above decisions, we are settled in our minds that the Deputy
Registrar, of the High Court (Labour Division) did not have jurisdiction to hear
and order stay of execution and at the same time order the applicant to deposit a
sum of Tshs. 2,500,000/= to that court as security for the due performance of the
decree in Revision No. 24 of 2017 while already there was a Notice of Appeal filed
in this Court. That order had no backing of the law. What he was supposed to do
after realizing that there was a pending appeal before this Court was to halt the
proceedings and pave way for the appeal process to proceed. By entertaining the
application for stay of execution while there was a pending notice of appeal lodged
in this Court, the Deputy Registrar slipped in an error for lack of jurisdiction. The
order was therefore unlawful.
The other point which has disturbed our minds is whether the Deputy Registrar of
the High Court (Labour Division) had powers to entertain an application for stay
of execution emanating from revision proceedings of that court. Under section
91(3) of the Employment and Labour Relations Act No. 6 of 2004, the Labour
Court has jurisdiction to stay the enforcement of the award of CMA pending its
decision. Labour Court is defined under section 2 of the Labour Institutions Act
No. 7 of 2004 to mean the Labour Division of the High Court established in
accordance with the provisions of section 50 which states:
50 - (1) There shall be established a Labour Division of the
High Court.
(2) The Labour Division of the High Court shall
consist of:
(a) such number of Judges as the Chief Justice may consider
necessary,:
(b) two panels of assessors appointed in terms of section 53.
609
(3) The Labour Division of the High Court shall be
constituted by a Judge sitting with at least two assessors...
(4) N/A
(5)N/A (6)N/A
The Registrar and Deputy Registrar of the Labour Court are covered under section
54 which states:
There shall be a Registrar and Deputy Registrar of the Labour
Division appointed in terms of the High Court Registries
Rules, 1984.
In all the provisions we have mentioned herein above and also the Labour Court
Rules, they don't explain what are the powers of the Registrar of High Court
Labour Division. Since such powers are specifically not provided, we seek
guidance in Rules 55(1) of the Labour Court Rules, GN 106 of 2007 which
provides:
Where a situation arises in proceedings or contemplated
proceedings which these rules do not provide, the Court may
adopt any procedure that it deems appropriate in the
circumstances.
The above Rule gives us mandate to seek guidance in Order XLIII (1) (i) of the
Civil Procedure Code [Cap. 33 R.E. 2002] which provides:
1. Subject to any general or special direction of the Chief
Justice, the following powers may be exercised by the
Registrar or any Deputy or District Registrar of the High
Court in any proceeding before the High Court-
(a) - (h) not applicable
(i) to stay execution, restore property, discharge Judgment
debtors and require and take security under Order XXI, rule
24;
(j) - (I) not applicable. [Emphasis supplied].
It is possible that in entertaining Miscellaneous Labour Application No. 18 of 2018

for stay of execution, the Deputy Registrar acted on those powers stipulated under
Order XLIII (i) of the Civil Procedure Code. However, under section 91(3) of the
Employment and Labour Relations Act, it is the court which is vested with the
power and when we come to section 2 read together with section 50 of the Labour
Institutions Act, earlier quoted, the Registrar does not feature anywhere in the
composition of the Labour Court. We cannot go to the C.P.C. as per Regulation 55
610
(1) while there are specific provisions in the Labour Legislation which specifically
states that stay of execution has to be done by the court. We are therefore
convinced that the Deputy Registrar not forming part of the court had no
jurisdiction to entertain and determine an application for stay of execution of a
decree originating from the High Court (Labour Division) in the exercise of its
revision jurisdiction. He assumed jurisdiction which he did not possess.
For the above reasons, we are increasingly of the view that the Deputy Registrar
had no jurisdiction to issue the stay order.
SEVERO MUTEGEKI & ANOTHER v. MAMLAKA YA MAJI SAFI

NA USAFI WA MAZINGIRA MJINI DODOMA (DUWASA)
AT DODOMA
(MUGASHA, NDIKA, and LEVIRA, JJ.A.)
(Appeal from the decision of the High Court of Tanzania at Dodoma, Mansoor,
J., dated 21st September, 2018 in Labour Revision No. 06 of 2017)
Disciplinary hearing – failure to issue a report as vital evidence to the employee
during disciplinary hearing – whether amounts to violation of right to be heard.
Right to be heard –respondent’s Internal Audit Manual provides that no findings,
conclusions and recommendations should ever be incorporated in an audit report
that were not previously discussed with auditees – appellants requested for the
audit report but was not supplied to them – whether appellants were condemned
unheard.
The appellants in this case were employees of the respondent as cashier and
assistant accountant respectively. Their employment was terminated after
disciplinary hearing, whereby, they were found guilty of gross negligence and
dishonesty. The appellants were not amused by the expulsion and as such, they
lodged an appeal to the Commission for Mediation and Arbitration. The CMA
decided in favour of the appellants. Aggrieved with the decision of the CMA, the
respondent successfully lodged a labour revision in the High Court. Being
aggrieved with the decision of the High Court, the appellants have preferred the
present appeal.
611
Held: i) Termination is adjudged unfair if the employer fails to prove that: One,
the validity of reasons for termination; two, that the reason for termination is fair
and three, that the termination was conducted in accordance with a fair procedure.
What constitutes a fair termination is regulated by Regulation 13 of the Code of
Good Practice which prescribes the criteria and the procedure regulating lawful
termination.
ii) In terms of sub-regulation (1) of Regulation of the Code 13 what entails an
investigation to ascertain whether there are grounds of the hearing includes as well,
exhausting the prescribed internal measures in the Employment Institution
regulating the operational aspects which are binding on both the employees and
the employer.
iii) The right to be heard before adverse action or decision is taken against a party
is so basic that a decision which is arrived at in violation of it will be nullified even
if the same decision would have been reached had the party been heard. This is so
because the violation is considered to be a breach of natural justice.
iv) Failure to accord the appellants an opportunity to be fully heard was a breach
of natural justice and a violation of a fundamental right to be heard under Article
13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977.
v) The non-involvement of the appellants and subsequent conviction based on the
audit report was irregular because the appellants could not adequately prepare for
the hearing before the disciplinary committee of the respondent. Instead, it is the
respondent who being in possession of the report had all the ammunition to make
a stronger case which was to the disadvantage of the appellants which rendered
what followed to be unprocedural.
Appeal allowed
Cases referred to
Simeon Manyaki v. The Institute of Finance Management [1984] T.L.R. 304
Abbas Sherally & Another v. Abdul S. H. M. Fazalboy, Civil Application No. 33
of 2002
Mbeya Rukwa Auto Parts and Transport Limited v. Jestina George Mwakyoma,
Mire Artan Ismail and Another v. Sofia Njati, Civil Appeal No 75
Selcom Gaming Limited v. Gaming Management (T) and Gaming Board of
Tanzania [2006] T.L.R 200.

Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977.
612
section 37 (2) of the Employment and Labour Relations Act
Mr. Machibya and Ms.Mbosa, for Appellant

Mr. Mrisha, Senior State Attorney and Mr. Nyakiha, State Attorney, for
Respondent

Dated 19th June, 2020
MUGASHA, J.A.: The appellants in this case were employees of the respondent
as cashier and assistant accountant respectively. On the 1st February, 2016 the
respondent wrote a letter to each appellant notifying them on having occasioned
loss of TZS. 250,560,517 and TZS. 380,478,754 respectively, as unveiled in the
internal audit report. In the said letters, each was required to make a written
response to the said allegations and they both obliged. Subsequently, they were
interdicted in order to pave way for an investigation to be conducted. Later, the
appellants after being heard before the respondent's disciplinary committee, were
found guilty of negligence and given a warning. However, they were directed to
resume their duties.
On 29/2/2016 the appellants were for the second time interdicted from
employment to pave way for another investigation to be conducted which is the
subject of the present appeal. Subsequently, on the 9th and 18th day of March, 2016
the respondent wrote to each appellant directing them to avail explanation on the
loss of TZS. 408,851,939/=. They both obliged and on the 21st March, 2016 were
summoned before the respondent's disciplinary committee on account of
allegations of occasioning loss of TZS. 408,851,939/=. After the hearing, the
appellants were found guilty of gross negligence and dishonesty and as a result,
they were both terminated from employment from the 2nd day of April, 2016.
The appellants were not amused by the expulsion and as such, they lodged an
appeal to the Commission for Mediation and Arbitration (the CMA) for Dodoma
vide RF/CMA/DOD/46/2016 and RF/CMA/DOD/47 /2016 respectively. The
CMA reversed the decision of the respondent's disciplinary committee on the
ground that, the appellants were unfairly terminated from employment because
there were no justifiable reasons and that procedures for termination were
unjustifiable. Aggrieved with the decision of the CMA, the respondent
successfully lodged a Labour Revision No. 6 of 2017 in the High Court of
613
Tanzania at Dodoma whereby the decision of the CMA was quashed and set aside.
Apart from the High Court observing that the CMA award in favour of the
appellants was illegally procured, it concluded that the termination was justified
because the respective procedures were complied with.
Being aggrieved with the decision of the High Court, the appellants have preferred
the present appeal to this Court. In the Memorandum of Appeal, they fronted seven
grounds of complaint as follows:
1. That the High Court erred in law and fact in deciding that there
was illegal and improper procurement of the award at the
Commission for Mediation and Arbitration.
2. That the High Court erred in law and fact in deciding that, there
was proof of loss of Tshs. 408,852,939/= caused by the
appellants' gross negligence.
3. That the High Court erred in law and fact in deciding that, there
was gross negligence committed by the appellants and that there
were justifiable reasons for their termination.
4. That the High Court misdirected in deciding that the appellants
were warned for the first time and then the loss continued as
such it justified for their termination.
5. That the High Court erred in law and fact in deciding that the
supply of the extract of the audit report was enough for the
appellants' right to be heard.
6. That the High Court erred in law and fact in deciding that the
respondent followed lawful procedures in termination of the
appellant's employment.
7. That the High Court erred in law and fact in not upholding the
decision of the Commission for Mediation and Arbitration for
Dodoma in its findings and award since it was based on
thorough analysis and valuation of the evidence.
Parties filed written submissions containing arguments for and against the appeal
which were adopted by the respective learned counsel at the hearing of the appeal.
At the hearing, the appellants were represented by Mr. Elias Machibya and Ms.
Magreth Mbasa, learned counsel, whereas the respondent had the services of Mr.
Abubakar Mrisha, learned Senior State Attorney and Mr. Daniel Nyakiha, learned
State Attorney.
Upon being reminded on the dictates of section 57 of the Labour Institutions Act
No. 7 of 2004 which require parties appealing to the Court to do so on a point of
law, Mr. Machibya opted to abandon the 2nd, 3rd, 4th and 7th grounds of appeal. In
the 1st, 5th and 6th grounds of appeal, the appellants basically faulted the learned
614
High Court Judge in ruling the award in their favour by the CMA was illegal and
improperly procured and that the termination of the employment of the appellants
was lawful.
It was submitted that, the learned High Court Judge made determination on
extraneous matters which were raised suo motu in the course of writing her
judgment and without hearing the appellants which made her to conclude that the
CMA award was illegal and improperly procured. On this, it was argued that,
though the issues of improper procurement of the arbitration award; gross
negligence of the appellants and embezzlement of funds were not pleaded, they
were the basis of the learned Judge's determination who for that reason,
condemned the appellants without hearing them. He argued this to be contrary to
paragraph 13 (6) of the Employment and Labour Relations (Code of Good
Practice) Rules, G.N 42 of 16/2/2007 (The Code of Good Practice) and urged the
Court to nullify the decision of the High Court and return the case file to the High
Court for the proper hearing of the Revision.
Regarding the unfair termination, it was submitted that, the learned High Court
Judge did not consider that the appellants were terminated in violation of the
prescribed procedure. It was pointed out that, while the audit report is what
precipitated the termination of the employment of the appellants, after the audit in
question, the appellants were not given opportunity to discuss the audit findings
with the internal auditor before he made a report which was the basis of preferring
the charges against the appellants. He argued this to have contravened Dodoma
Urban Water Supply and Sewerage Authority (DUWASA) Internal Audit Manual
(the Internal Audit Manual). In addition, it was contended that, though the
appellants had requested to be given the audit report before the hearing, this was
not heeded by the respondent. In this regard, it was argued that the appellants were
condemned without being given opportunity to be heard which is a violation of
Rule 13 of the Code of Good Practice.
On the other hand, in opposition of the appeal, Mr. Mrisha urged the Court to
dismiss the appeal. It was submitted that, the High Court’s observation on the
illegal and improper procurement of the CMA award, was justified as it suffered
material irregularities on account of the failure by the arbitrator to properly
evaluate the evidence presented before the CMA on the occurrence of loss
occasioned by the appellants which was not considered by the arbitrator.
Moreover, it was submitted that the termination was fair and valid because the
procedures were complied with to the letter. On this, Mr. Mrisha pointed out that,
the appellants were duly notified about the allegations against them; were given
opportunity to make responses; informed about right to be represented before the
disciplinary committee and opted to bring their advocates; upon being heard they
were found guilty and terminated from employment on account of gross
615
negligence occasioning loss of TZS. 408.851,938.65/=. It was argued that, since
the internal auditor had conducted a special audit, he was bound by special terms
of reference and not the Internal Audit Manual and as such, he was not obliged to
discuss the findings with the appellants before making the audit report.
In the alternative, it was argued that, since the appellants were given extracts of
the audit reports, it was perilous on their part not to press to be availed with the
full audit report. In addition, Mr. Nyakiha chipped in by arguing that, the auditee
referred to under item 8.4 of the Internal Audit Manual is the Director General who
was being audited and not the appellants. Finally, it was submitted that the
termination was fair and valid having complied with the criterion stated under Rule
13 of the Code of Good Practice.
In rejoinder, Mr. Machibya maintained that, the appellants were not heard in what
was raised suo motu by the learned High Court Judge on the illegal and improper
procurement of the award. He added that, since it is the Director General of the
respondent who directed the audit to be conducted as reflected at page 100 of the
record of appeal, the actual auditees were the appellants and not the Director
General. He thus reiterated that; the appellants were entitled to be given
opportunity to discuss the findings with the auditor before the making of the report.
Besides, he added that despite requesting to be availed with the full audit report as
indicated at pages 877 and 879 of the record which was conceded by the Auditor
at page 1593 of the record of appeal, the report was not availed to the appellants.
He argued this to be a violation of Rule 13 (5) of the Code of Good Practice and
urged the Court to allow the appeal.
After a careful consideration of the written submissions for and against the appeal
and the oral submissions of learned counsel, we have gathered that, it is not in
dispute that the employment of the appellants was terminated on account of having
occasioned loss of the sum of TZS 408,851,939/= to the respondent. However,
parties locked horns on the propriety or otherwise of the finding by the High Court
on the award by the CMA being illegally and improperly procured and secondly,
the validity or otherwise of the termination of the appellants' employment. Rule
8(1) (c) and (d) of the Code of Good Practice provides that:
An employer may terminate the employment of an employee if
he-
(c) follows a fair procedure before terminating the contact: and
(d) has a fair reason to do so as defined in Section 37(2) of the
Act.
In terms of the provisions of section 37 (2) of the Employment and Labour

Relations Act, termination is adjudged unfair if the employer fails to prove that:
One, the validity of reasons for termination; two, that the reason for termination
616
is fair and three, that the termination was conducted in accordance with a fair
procedure. What constitutes a fair termination is regulated by Regulation 13 of the
Code of Good Practice which prescribes the criteria and the procedure regulating
lawful termination to include the following:
13-(1) The employer shall conduct an investigation to ascertain
(2) where a hearing is to be held, the employer shall notify the
employee of the allegations using a form and language that the
employee can reasonably understand
(3) The employee shall be entitled to a reasonable time to prepare
for the hearing and to be assisted in the hearing by a trade union
representative of fellow employee. What constitutes a
reasonable time shall depend on the circumstances and the
complexity of the case, but it shall not normally be less than 48
hours.
(4) Evidence in support of the allegations against the employee
shall be presented at the hearing. The employees shall be
given a….
In terms of sub-regulation (1) what entails an investigation to ascertain whether

there are grounds of the hearing includes as well, exhausting the prescribed internal
measures in the Employment Institution regulating the operational aspects which
are binding on both the employees and the employer. In the present case, as earlier
stated, what triggered the dispute which is the subject of the appeal before us, is
the internal audit in terms of letters authored by one Selemani Mwaita, Accountant
addressed to each of the appellant. In respect of the 1st appellant, the letter with
REF: DUWASA/CF.SD20/3/VOL.I/ 45 dated 9/3/2016 at pages 838 indicates
among other things, as follows:
YAH: KUTOA MAELEZO KUHUSIANA NA UPOTEVU
WA FEDHA KIASI CHA TSHS. 408,851,939/=
Mnamo tarehe 14.01.2016 mwajiri alipokea taarifa ya Mkaguzi
wa ndani ikiwa na taarifa mbili moja ikiwa ni upotevu wa fedha
kiasi kilichotajwa hapo Juu.
Katika taarifa hiyo inaonesha kuwa wewe kama Mtunza Fedha
(Cashier) kwa kipindi cha kati ya tarehe 01.07.2015 hadi
26.11.2015 haukuweza kupeleka fedha benki kiasi tajwa hap
Juu zikiwa ni fedha taslimu kutoka kwa wateja waliolipia
kupitia pay points za Mamlaka kwa kipindi tajwa.
Kwa mujibu wa majukumu yako ya kazi kama Mtunza Fedha
(cashier) ulipokea fedha
hizo kutoka kwa Revenue collectors kwa tarehe tofauti kama
viambatisho vinavyoonesha lakini kutokana na sababu ambazo
617
hazifahamiki haukuweza kupeleka fedha benki kama
unavyopaswa kufanya pasipo maelezo yoyote kitendo ambacho
kimepelekea upotevu wa fedha kiasi hicho....
Kwa barua hii nakupa masaa 48 tokea muda wa kupokea barua
hii utoe maelezo ya kina ni wapi fedha hizo zilipo, na kama
hakuna majibu Je kwa nini usichukuliwa hatua kali za
kinidhamu kwa upotevu huo.
Kwa barua hii naambatisha vielelezo vinavyoonesha
mchanganuo wa kilichopokelewa kwa siku na kilichopelekwa
benki pamoja na ambavyo ndiyo kiasi kilichopotea.
In respect of the 2nd appellant, the respective letter is REF:

DUWASA/CF.SD.20/3/VOL.I/ 52 dated 18/3/2016 whereby at page 1497 it bears
the same contents as that of the 1st appellant except on the allegation of negligent
making entries in the cash book.
In a nutshell, in reference to the audit report in question, each appellant was
required to explain away as to why he should not be subjected to disciplinary
measures on account of omitting to discharge duties which occasioned the stated
loss to the respondent. The appellants obliged and gave their explanations. In those
explanations, in 1st appellant's letter which appears from pages 874 to 877 of the
record, she among other things, inquired from the respondent what is reflected at
page 877 that:
7. Vielelezo vyote ulivyoambatanisha kwenye barua yako
nilikwisha vijibu kwenye hatua za nidhamu za awali. Hivyo
hatua hii iliyoanza upya ni batili na yenye nia mbaya kwangu.
Hata hivyo, vielelezo hivyo havieleweki kwani vingine
vimeandikwa kwa kiingereza, vingine vinaonesha majedwali
amabayo siyo rahisi kuyachambua na kuyaelewa. Wakati
mwingine kama kuna shtaka halali na la haki ni vema mtu
akapewa report yote nzima ya ukaguzi ili aweze kujibu vizuri.
Mimi sikupewa hiyo taarifa. Badala yake kwenye barua yako
umeambatanisha vipande tu ambavyo unavihitaji wewe bila
kuona taarifa yote. Vipande vya kuonyesha wazi wapi mkaguzi
alisema mimi nimekosea…
As for 2nd appellant, her letter dated 20/3/2016 from page 878 to 880 of the record
in paragraph 5 at page 879 of the record raised a similar concern as follows:
...Vielelezo vyako vyote ulivyoambatanisha vinaonyesha tu
mchanganuo wa kiasi kilichopelekwa benki pamoja na tofauti
ambayo ndiyo kiasi kilichopotea. Vielelezo hivi havinihusu
kutokana na mapungufu yafuatayo:
618
(i) Havionyeshi mimi kosa langu ni lipi na nilihusika wapi?
(ii) Taarifa yenyewe ya mkaguzi sikupewa yote ili nami niweze
kuelewa mapungufu yangu yalitokea vipi na hapo ndipo
ningeweza kujibu vizuri.
(iii) Hizo taarifa za mahesabu (cash book) zinazodaiwa nilliingiza
mahesabu kimakosa sijapewa ili niweze kujibu mapungufu
yangu.
(iv) Majedwali yote uliyoniambatanishia yanaonyesha fedha
zilizoingia na zilizopelekwa benki na mapungufu. Mimi kazi
yangu siyo kupokea pesa wala kuzipeleka benki. Hivyo
vielelezo hivyo havihusiki na mimi. Ningeomba nipewe
vielelezo vinavyohusiana na kazi yangu ili niweze kujibu
malalamiko yanayonihusu…
Both appellants brought to the attention of the respondent that, without the full
audit report they were not placed in a position to know the raised queries and that,
the extracts of the report availed were not clear; neither relevant to the charges nor
had any bearing on the scheduled duties of one of the appellant. As such, it was
not possible for them to make adequate explanations on the charges laid. However,
this was not heeded and instead, the appellants were subjected to a disciplinary
committee and they were expelled from the employment.
Before the CMA, a similar complaint ensued that neither were the appellants
involved in the audit exercise nor given the audit report so as to make proper
responses to allegations against them. The CMA's determination was to the effect
that the appellants were not fairly terminated on account of what is reflected at
page 1685:
Tume inaona kuwa hoja hii ina mashiko kwa sababu ya
kutowahoji walalamikaji wakati wa ukaguzi ilikuwa ni sawa na
kuwanyima haki ya kusikilizwa. Hii pia ilikuwa ni kwenda
kinyume na kanuni za ukaguzi wa ndani za DUWASA. (Internal
Audit Manual)…
The decision was reversed by the High Court on ground that the award was illegal
and improperly procured because the appellants were guilty of gross negligence.
Besides, the appellants' complaint on not being availed with the audit report was
treated by the High Court in the following manner:
In fact, there was illegal and improper procurement of the
Award in that there was ample evidence of gross negligence
present before the Arbitrator, and it was wrong for the Arbitrator
to rely in his decision that since the employees were not
supplied with full report of the audit then they were denied a
619
chance to be heard. It is in evidence that the employees were
supplied with the extract of the audit report in which their
charge was based, and if they needed more information or
more particulars of the charge, they should have requested
from the employer before they answered the letter to show
cause. It is in evidence that the employer was able to prove that
the employees were negligent. [Emphasis added]
This finding is with respect, wanting and it is entirely not supported by the
evidence on the record which justifies the intervention of the Court on account of
misapprehension of the evidence on the record as it constitutes a point of law for
determination by the Court in terms of section 57 of the Labour Institutions Act.
We say so because, it is on record that, the request by the appellants to be availed
with the full audit report and other documents so that they could make prompt
responses was not heeded by the respondent who proceeded to punish the
appellants.
Moreover, while the CMA considered paragraphs 8.4 and 8.4.1 of the Audit
Manual which, among other things, prescribes the modality of discussion of
internal audit report with the management and that no findings, conclusions and
recommendations should ever be incorporated in an audit report that were not
previously discussed with auditees, the High Court did not consider the Manual
which was crucial in determining if the appellants were involved or not.
It was the submission of Mr. Nyakiha for the respondent that, the auditee in this
matter was the Director General and not the appellants and as such, the internal
auditor was not obliged to have a prior discussion with the appellants. This was
challenged by Mr. Machibya who argued that, since it is the Director General who
directed the audit to be conducted, the actual auditees were the appellants and not
the Director General of the respondent.
It is our considered view that, though the Internal Auditor's ultimate reporting
responsibility lies to the Director General it is not in dispute that, those actually
audited were the appellants and it is the audit report which triggered the charges
against them. In that regard, the non-involvement of the appellants and subsequent
conviction based on that report was irregular because they could not adequately
prepare for the hearing before the disciplinary committee of the respondent.
Instead, it is the respondent who being in possession of the report had all the
ammunition to make a stronger case which was to the disadvantage of the
appellants which rendered what followed to be unprocedural. We are fortified in
that account in the light of what the High Court said in case of Simeon Manyaki v.
The Institute of Finance Management [1984] T.L.R. 304 among other things, that:
620
(i) An administrative body exercising functions that impinge
directly on legally recognized interests has a duty to act
Judicially in accordance with the rules of natural Justice,
(ii) the applicant whose rights and legitimate expectations stood
to be so adversely affected by the inquiry had the right:
a. of being sufficiently appraised of the particulars of the
prejudicial allegations that were to be made or had been
made against him, so that he could effectively prepare his
answer and collect evidence necessary to rebut the case
against him;
b. subject to the need for withholding details in order to
protect other overriding interest, of being accorded
sufficient opportunity of controverting or commenting on
the materials that had been tendered or were to be
tendered against him;
c. of presenting his own case;
d. of being given a reasonable and fair deal...
We fully subscribe to the said decision and in the case at hand, it was incumbent
on the respondent's disciplinary committee to observe the said guidelines. We say
so because in the light of what transpired in the case at hand, it cannot be safely
vouched that the appellants were given opportunity to be fully heard before being
condemned. The right to be heard before adverse action or decision is taken against
a party is so basic that a decision which is arrived at in violation of it will be
nullified even if the same decision would have been reached had the party been
heard. This is so because the violation is considered to be a breach of natural
justice. See- Abbas Sherally & Another v. Abdul S. H. M. Fazalboy, Civil
Application No. 33 of 2002 (unreported). Thus, the failure to accord the appellants
an opportunity to be fully heard was a breach of natural justice and a violation of
a fundamental right to be heard under Article 13 (6) (a) of the Constitution of the
United Republic of Tanzania, 1977 (the Constitution) which provides:
Wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa
uamuzi wa Mahakama au chombo kinginecho kunachohusika,
basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa
kwa ukamillfu...
See- Mbeya Rukwa Auto Parts and Transport Limited v. Jestina George
Mwakyoma, Civil Appeal No. 45 of 2000 and Mire Artan Ismail and Another v.
Sofia Njati, Civil Appeal No 75 of 2008 (both unreported) and Selcom Gaming
Limited v. Gaming Management (T) and Gaming Board of Tanzania [2006] T.L.R
200.
621
In view of what we have endeavoured to discuss, we are satisfied that the
termination of employment of the appellants was unfair as correctly found by the
CMA on account of denial of the right to be heard on the part of the appellants.
As to the finding by the learned Judge of the High Court that, the CMA award was
illegal and improperly procured, this was not justified as it is not backed by the
evidence on the record. However, we do not agree that it was based on extraneous
factors because the issues of gross negligence fared right from the initial stages
when the charge was laid against the appellants; during the proceedings before the
disciplinary committee and before the CMA.
In this regard, we are satisfied that, the termination of the appellants was not valid
on account of being condemned without being heard and as such it was
unprocedural and unfair as rightly found by the CMA. We thus allow the appeal,
reverse the decision of the High Court and order the respondent to pay the
appellants remuneration or terminal benefits in compliance with CMA's award.
This being a labour matter, we make no order as to costs.
Appeal allowed
622
ST. JOSEPH KOLPING SECONDARY SCHOOL v. ALVERA
KASHUSHURA
IN THE COURT OF APPEAL OF
TANZANIA AT BUKOBA
(MWARIJA, SEHEL, and MAIGE, JJ.A.)

(Appeal from the Judgment of the High Court of Tanzania, Labour Division
at Bukoba, Kilekamajenga, J. dated the 18th day of December, 2020 in
Revision Application No. 21 of 2018)
Termination of employment – substantive and procedural fairness – whether an

employee can be terminated from her service basing on a termination clause in the
contract without there being fair reasons and compliance with fair procedure.
Termination of employment – whether termination of contract under common law is

subject to the provisions of the ELRA and its regulations.
Termination of Employment – Whether notice of termination is by itself a reason or

cause of termination. Fixed Term Contract of Service – Whether contract of service
can be terminated prematurely without giving reasons.
The respondent had since 4th May, 2015 been in the service of the respondent as the
school head mistress. The term of the contract was three years renewable. On 21st
October, 2015 the respondent received a letter from the appellant accusing her for
“unworthy reception of the school owner when he visited the school”. The
623
respondent apologised in writing. Two months later, the appellant terminated her
service for want of cooperation with her fellow teachers and members of the staff.
The respondent challenged the termination in the Commission for Mediation and
Arbitration for being unfair. The CMA found the termination unfair both
substantially and procedurally. Aggrieved, the appellant preferred a revision to the
Labour Court, which dismissed the appeal and upheld the decision of the CMA.
Once again aggrieved, the appellant has preferred the instant appeal.
Held (i) Termination of service is said to be fair according to section 37(2) if it is

based on fair and valid reasons and carried out in observance of fair procedures
stipulated in the provisions of ELRA. The fairness requirement under the
ELRA emanates from the provisions of Termination of Employment
Convention 158 of 1982, which establishes the core elements of the employee's
rights as to include requirement for valid reason for any termination. The
Convention recognizes three reasons as misconduct, incapacity and operational
requirements which have been duly incorporated in section 37(2) (b) (i) and (ii)
of the ELRA.
(ii) Creation of a specific duration of contract gives the employee legitimate

expectation that if everything remains constant, he or she will be in the service
throughout the contractual period. The expectation is defeated, if the same can
be terminated at any time without reason.
(iii) The application of the rules as to termination of contract under common

law is subject to the provisions of the ELRA and its regulations, including
section 37 of the ELRA.
(iv) A notice of termination is not by itself a reason or cause of termination but

rather it is the way or mode of termination. That is why under the ELRA, unless
the termination of service is on disciplinary grounds, the employer is bound to
624
give the employee notice of termination even though it is not provided in the
contract of service. Section 41(3) and (4) of the ELRA requires such notice to
be in writing and state the reasons for and the date of the termination. Had
notice been a cause for termination, the law would have not imposed the
requirement for assigning reasons.

18th July, 2022
MAIGE, J.A.: The appellant is a secondary school duly registered under the laws of
Tanzania. In this appeal, it is being represented by Mr. Mathias Rweyemamu, learned
advocate. The respondent is represented by Mr. Dunstan Mutagahywa, also learned
advocate. The appeal is against the decision of the High Court of Tanzania (Labour
Division) at Bukoba (the Labour Court) dated 18th December, 2020 dismissing an
application for revision by the appellant.
The factual background giving rise to this appeal is common cause. The respondent
had since 4th May, 2015 been in the service of the respondent as the school head
mistress. The term of the contract as per exhibit D3 was three years renewable.
Clause 3.2 (a) and (b) of the contract provided as follows:
“a) Termination of employment shall abide by the

Employment and Labour Relations Act 2004.
b) In the event the employee wishes to terminal the
contract he shall give a notice in writing three
months before or surrender a one month's salary;
the same will apply with the employer.”
On 21st October, 2015 the respondent received a letter from the appellant accusing
her for “unworthy reception of the school owner when he visited the school”. The
625
respondent apologised in writing. Two months later, the appellant terminated her
service for want of cooperation with her fellow teachers and members of the stuff
also using unworthy language and bullying them. The respondent challenged the
termination to the Commission for Mediation and Arbitration at Bukoba (the CMA)
for being unfair. The CMA found the termination unfair both substantially and
procedurally. It therefore, awarded the respondent the amount equal to the monthly
salary of the remaining contractual period of 12 months as cash in lieu of
reinstatement and other terminal benefits.
Aggrieved, the appellant preferred a revision to the Labour Court raising two
complaints. One, the appellant was wrongly sued as the employer was Kolping
Society of Tanzania. Two, the CMA was wrong in holding that, the respondent's
contras was unfairly terminated. The Labour Court dismissed the appeal and upheld
the decision of the CMA.
Once again aggrieved, the appellant has preferred the instant appeal. She has raised
the following grounds:
1. That, the High Court judge grossly erred in law and fact for failure
to revise the entire proceedings to cure all possible irregularities,
illegalities and procedural impropriety in the proceedings of the
Commission for Mediation and Arbitration.
2. That, the High court judge grossly erred in /aw to refrain from
revising the proceeding of Arbitration which was nullity for being
commenced before the Mediation proceedings was closed.
3. That, the High Court judge erred in law for failure to set aside the
award which was unlawfully entered in awarding the respondent
Tsh 20,400,000/= while the termination was substantively and
procedurally fairly proved that termination was based on contract
entered.
626
4. That, the High court erred in law to find that the respondent was
terminated without being given a right to be heard which she was
afforded at all time.
5. That, the judge of the High Court grossly erred in law to hold that the
respondent was employed by the appellant and not Kolping Society of
Tanzania a fact which was an issue undetermined at the trial
commission.
6. That, the judge of High Court after had found that the appellant
substantially proved fair termination but failed to prove
procedural fairness grossly erred in law and fact for failure to
order that the respondent had no cause of action to complain.
With the above factual elucidation of the nature of the controversy, it may be
desirable to consider the substance of the appeal. Before doing so however, a brief
exposition of the law governing an appeal from decisions of the Labour Court is
necessary. It is governed by section 57 of the Labour Institutions Act No. 7 of 2004
(now Cap. 300 R.E 2019), (the LIA) which provides as follow:
“Any party to the proceedings in the Labour Court may

appeal against the decision of that Court to the Court
of Appeal of Tanzania on a paint of law only.”
(Emphasis is ours)
In different occasions, this court has considered the above provision to mean that,
an appeal against a decision of the Labour Court lies only on points of law. For
instance, Remigius Muganga v. Barrick Bulyanhulu Gold Mine, Civil Appeal
No. 47, 2017 (unreported) it was stated:
627
“S. 57 of the LIA provides in mandatory terms that an
appeal arising from a decision of the Labour Court
must be based on a point of Law only.”
In the second ground of appeal, the appellant was challenging the validity of the
arbitral proceedings of the CMA for being conducted before conclusion of the
mediation process. Nonetheless, after a brief dialogue with the Court, Mr.
Rweyemamu abandoned the said ground. We shall thus not consider it in this
Judgment.
On the first ground which was argued concurrently with the fifth ground, it was Mr.
Rweyemamu's submission that, because all the employment documents in the record
including the termination letter (exhibit D2), indicate that the employer was Kolping
Society of Tanzania and not the appellant, the appellant was wrongly sued. The
award and the whole proceedings of the CNA should thus be nullified. The counsel
referred us to the decision in Stella Temu v. Tanzania Revenue Authority [2005]
TLR 178 where it was held that;
“As the appellant was not an employee of the

respondent and there was no termination of the
appellant’s employment by the respondent, the letter
has no duty to give the appellant a hearing.”
In rebuttal, Mr. Nutagahywa submited that, since the appellant is named in exhibit
D3 as the employer, the respondent could not, under the doctrine of privity of
contract, have a cause of action against the society for a breach of the contract. The
name of the society in the headed paper of the contract, he further submitted, could
not make the society a party to the contract unless it was expressly incorporated into
the contract, which was not. In the alternative, he submitted, as the appellant
represented herself in the contract as an employer, the respondent having acted on
the representation with a bona fide belief that it was true, the appellant is estopped,
628
under section 123 of the Evidence Act [Cap. 6. R.E. 2022] from denying the fact. In
further alternative, it was his submission that, the issue involved being a pure factual
issue, it is not appealable in Law.
Addressing the issue, the Labour Court observed at page 287 of the record of
appeal as follows:
“On the first issue, the counsel for the applicant

vehemently argued that the respondent was employed
by Kolping Society of Tanzania and not by St. Joseph
Secondary School. In addressing this point, f was
obliged to revisit the contract that was signed by the
respondent. There is no shred of doubt the contract of
employment which is the foundation of the dispute
shows the parties to be 'St. Joseph Kolping Secondary
School’ and Alvera Felix Kashushura. The same
contract has the headed title bearing the name of
Sociefy of Tanzania because the School is operated by
the society. Throughout the file and evidence adduced
before the trial commission, it was undisputed that Sf.
Joseph Kolping Secondary School is owned and
operated by Kolpinp Sociefy of Tanzania. In my view,
the allegation that the respondent was employed by
Kolping Sociefy of Tanzania and not St. Joseph Kolping
Secondary School is just an invention of the counsel for
the applicant. The same argument has no merit because
it contradicts the documents available in file.”
From the finding of the Labour Cout, it is apparent that, the issue before it was not
whether a person nof a party to a contra4 of employment could be sued for a breach
of the contract but whether the appellant was not the employer of the respondent.
The Labour Cour having reappraised the evidence on the record, including the
629
employment contract in exhibit D3, concluded that, the appellant was the employer.
In the circumstance, we agree with Mr. Mutagahywa that, the issue involved was
factual. It could perhaps have involved some points of law if the issue was whether
a non-party to an employment contract could be sued for unfair termination of the
same.
There was also a contention that, the service of the respondent was terminated by
the society and not the appellant. At the CMA where the appellant was sued, she did
not raise it as a defence. Neither did she deny the fact that the service of the
respondent had been terminated. The basis of her defence was that, the same was
fairly terminated. The finding of the Labour Court on the point can therefore not be
faulted. For the fore going reasons, therefore, we dismiss the first and fifth grounds
from the record.
We proceed with the third, foulh and sixth grounds of appeal wherein the Labour
Court is faulted in effect for holding that the termination of the service of the
respondent was unfair both substantially and procedurally. We wish to star our
discussion by making a note that, in the revision at the Labour Court, the appellant
justified the termination of the respondent's service based solely on the termination
clause in exhibit D3. The CMA‘s finding on fairness of reasons and procedure was
not at issue. For the avoidance of doubt, we reproduce hereunder the appellant's
entire submissions on the issue which appear at page 278 of the record of appeal:
“Also the termination was part and parcel of the

contract. The contract allowed each party to terminate
the contract. The respondent was terminated and paid
terminal benefits. The applicant was unlawfully
condemned such an amount of money. My Lord, the
applicant paid the respondent 3 months' salary in lieu
of notice. According to the employment contract, the
applicant exercised the rights according to the
630
employment contract. So, the award by the CNA was
irrational and illegal”
That being the case and indeed it is, we will not consider any submissions purporing
to fault the concurrent factual findings of both the CMA and the Labour Council that
the respondent's dismissal was not founded on fair reasons and procedure. The only
issue which we shall consider and which sounds to be an issue of law is whether the
employee could be terminated from her service basing on a termination clause in the
contract without there being fair reasons and compliance with fair procedure. The
Labour Court Judge at page 288 of the record, answered the issue as follows:
“On the second issue, the counsel for the applicant

argued that the respondent's contract of employment
was fairly terminated by the applicant. He further
informed this Court that termination of the employment
was part of the agreement entered between the parties
and therefore the termination was just an
implementation of the contract. Before venturing into
the details of this argument, I am saddened by the
argument by the counsel for the applicant who knew
that contracts of employment are governed by Labour
Laws, rules and regulations. Such contracts must
conform to the laws and Constitution of the country. In
this case, the respondent’s contract of employment was
terminated before its lapse. For that reason therefore,
its termination was supposed to comply with section 37
(1) of the Employment and Labour Relations Act...”
In his submission, Mr. Rweyemamu relying on the provision of rule 8(2) of the
Employment and Labour Relations (Code of Good Practice) Rules, 2007, G.N. No.
42, henceforth, “the Code of Good Practice”, read together with section 36 (a) of the
Employment and Labour Relations Act, Act No. 6 of 2004 (now Cap. 366 R.E. 2019)
(the ELRA) contended that; where the employee is engaged under a fixed term
631
contract which seu out the mode of termination, the .statutory requirement of fairness
of termination do not arise.
In reply, Nr. Mutagahywa submited that, the respective provision aside from
clarifying what may be fair reasons for termination of a fixed term contract, does not
dispense with the requirement as to fair reasons and procedure under section 37 of
the ELRA. According to him, the only contract which are exempted from such
requirement under section 35 of the ELRA are those whose terms of employment
are less than 6 months.
At this juncture, we find it useful to put it clearly that, under section 37(1) of the
ELRA, unfair termination of contract is illegal. It reads as follows:
“37- (1) It shall be unlawfully for an employer to

terminate the employment of an employee unfairly.”
Termination of service is said to be fair according to section 37(2) if it is based on

fair and valid reasons and carried out in observance of fair procedures stipulated in
the provisions of ELRA. The fairness requirement under the ELRA emanates from
the provisions of Termination of Employment Convention, 1982 (No. 158), which
establishes the core elements of the employee's rights as to include requirement for
valid reason for any termination. The Convention recognizes three reasons as
misconduct, incapacity and operational requirements which have been duly
incorporated in section 37(2) (b) (i) and (ii) of the ELRA.
Mr. Rweyemamu has justified the termination under clause 6.2 (b) of the contract
which provides for termination of contras by giving three months' notice or cash in
lieu thereof. In his submission, such kind of termination is justified under rule 8 (2)
of the Code of Good Practice without necessarily observing the requirements under
section 37 of the ELRA.
632
We are quite aware that, under section 36 of the ELRA, termination of contract of
service includes a lawful termination under common law. However, in
understanding the broadness of the concept of termination of contract of service
under the common law, rule 3 (2) of the Code of Good Practice defines termination
under common law to mean; termination of contract by agreement, automatic
termination, termination by the employee and determination by employee. Neither
of the circumstances refers to termination af the instance of the employer (dismissal)
as it is in this case. In our opinion, therefore, the application of the rules as to
termination of contract under common law is subject to the provisions of the ELRA
and its regulations, including section 37 of the ELRA.
We do not agree with Mr. Rweyemamu that, a notice of termination is by itself a

reason or cause of termination but rather it is the way or mode of termination. That
is why under the ELRA, unless the termination of service is on disciplinary grounds,
the employer is bound to give the employee notice of termination even though it is
not provided in the contract of service. Section 41(3) and (4) of the ELRA requires
such notice to be in writing and state the reasons for and the date of the termination.
Had notice been a cause for termination, the law would have not imposed the
requirement for assigning reasons.
We also do not agree with him that, under our laws a fixed term contract of service
can be prematurely terminated without assigning reasons. This is because the
conditions under section of the 37 of the ELRA are mandatory and therefore implicit
in all employment contracts. It is only inapplicable to those contracts whose terms
are shorter than 6 months. (See section 35 of the ELRA). In addition, creation of a
specific duration of contract gives the employee legitimate expectation that if
everything remains constant, he or she will be in the service throughout the
contractual period. The expectation is defeated, if the same can be terminated at any
time without reason.
633
In view of the foregoing discussions, therefore, the Labour Court Judge was right in
holding that, termination of respondent's employment contract could not be fair
without being based on fair reasons and procedure set out under section 37 of the
ELRA.
In the upshot and for the reasons as afore stated, we find the appeal without merit. It
is accordingly dismissed with costs.
SWILLA SECONDARY SCHOOL v. JAPHET PETRO

AT MBEYA
(LILA, KOROSSO, and MWANDAMBO, JJ.A.)
(Appeal from the Judgment of the High Court of Tanzania at Mbeya, Mongella, J.,
dated 18th July, 2019 in Labour Revision No. 42 of 2017)
Jurisdiction – time limitation - second application to set aside the ex-parte award
was time barred – arbitrator proceeded to entertain the application resulting into
setting aside the previous ex parte award – whether arbitrator was invested with
jurisdiction to hear and determine the dispute
Revision – jurisdiction of the Labour Court - Labour Court finds the second
application for setting aside the ex-parte award was time barred - validity of the ex-
parte award was not at issue as it was not raised as a ground of revision -. Labour
634
Court proceeded to vary the ex- parte award – Whether the variation of the terms
that obtained in it was improper.
The respondent was employed by the appellant as a teacher on a fixed term contract
of three years. However, before lapse of such term, his service was terminated on
allegation of absenteeism. The termination aggrieved him. He referred the matter to
the Commission for Mediation and Arbitration. The appellant defaulted to enter
appearance during the hearing of the dispute consequent upon which the CMA
proceeded ex parte. The CMA issued an ex-parte award in favour of the respondent.
Uncomfortable with the award, the appellant twice sought to challenge it by lodging
an application to set it aside. Finally, the CMA decided in favour of the appellant.
The CMA's decision aggrieved the respondent. He sought for revision at the High
Court Labour Division. The High Court restored the ex-parte award by CMA. The
appellant was not satisfied, hence the present appeal.
Held: i) The law is settled that the issue of jurisdiction for any court is basic as it
goes to the very root of the authority of the court or tribunal to adjudicate upon cases
or disputes. Courts or tribunals are enjoined not to entertain any matter which is time
barred and in any event if they do so, the Court unsparingly declares the proceedings
and the consequential orders a nullity.
ii) The relevant law governing time limit of lodging an application for setting aside
an ex-parte award is Rule 30(1) of the Labour Institution (Mediation and Arbitration
Guidelines) G.N. No. 64 of 2007 which requires an application to set aside an award
to be made within fourteen (14) days from the date he became aware of the award
sought to be set aside.
iii) Settled law is to the effect that parties are bound by their pleadings. Similarly,
courts have to hear and determine disputes based on the pleadings. Equally important
and by analogy, appeals and revisions must be decided on the grounds raised and if
a party desires to raise or add other grounds, he must place them before the court.
Proceedings quashed
Cases referred to
(1) Mayira B. Mayira and Four Others v. Kapunga Rice Project, Civil appeal No.
359 of 2019
635
(2) The D.P.P. v. Bernard Mpangala and Two Others, Criminal Appeal No. 28
of 2001
(3) Lever Brothers Ltd v Bell (1931) 1 KB 557
(4) Anthony Ngoo and Another v. Kitinda Kimaro, Civil Appeal No. 25 of 2014
(5) Lever Brothers Ltd v Bell (1931) 1 KB 557
(6) Anthony Ngoo and Another v. Kitinda Kimaro, Civil Appeal No. 25 of 2014

(1) Rule 30(1) of the Labour Institution (Mediation and Arbitration Guidelines)
G.N. No. 64 of 2007
Mr. Sahwi, for Appellant


LILA, JA: The respondent, Japhet Petro, rendered his services with the appellant,
Swilla Secondary School, as a teacher on a fixed term contract of three years.
However, before lapse of such term, his service was terminated on 11th November
2015 on allegation of absenteeism. The termination aggrieved him. He referred the
matter to the Commission for Mediation and Arbitration (the CMA).
The appellant defaulted to enter appearance during the hearing of the dispute
consequent upon which the CMA proceeded ex parte. At its conclusion of the
hearing on 1st March 2016, the CMA issued an ex-parte award. It was its finding that
the respondent was unfairly terminated and awarded him severance allowance of
TZS 201,923.00, payment in lieu of notice TZS 807,692.00, compensation of twenty
month's remuneration TZS 15,000,000.00, general damages TZS 2,000,000.00,
salary arrears TZS 750,000.00, gratuity TZS 4,050,000.00, leave allowance TZS
807,692.00. In sum the appellant was ordered to pay TZS 23,617,307 to the
respondent.
Uncomfortable with the award, the appellant sought to challenge it. It being an ex-
parte award, the appellant on 14th March 2016, lodged an application to set it aside.
636
The efforts were, however, thwarted, for on 25th May 2016, the CMA struck out the
application for being incompetent on account of not being supported by an affidavit.
The Appellant did not succumb. On 8th June, 2016 she lodged yet another application
praying to set aside the ex-parte award. Despite the respondent raising an objection
to the effect that it was time barred, on 21st October 2016 the application was granted.
The ex-parte award was thereby set aside. The arbitrator, thereafter, entertained the
dispute and was satisfied that termination was fair both substantively and
procedurally and found for the appellant. The respondent's claims were accordingly
dismissed.
The CMA's decision aggrieved the respondent. He sought for revision at the High
Court Labour Division. The High Court quashed the decision issued on 25th May
2016 by the CMA which set aside the ex-parte award, nullified the award issued on
22/6/2016, and restored the ex-parte award dated 1st March 2016 for a reason that
the application for setting aside the ex-parte award was time barred. The learned
judge, however, went further to examine the award and granted the respondent
twelve (12) month's remuneration amounting to TZS 9,000,000.00, a November
2015 salary of TZS 750,000.00 and leave pay in the sum of TZS 700,000.00. She
dismissed the claims for general damages, severance pay and gratuity. In total, she
awarded payment of TZS 11,200,000.00 to the respondent.
The modification of the award in her favour notwithstanding, the appellant was still
not satisfied, hence the present appeal. She now seeks to challenge the High Court
decision on these complaints:
1. The High Court erred in law and fact in holding that the
appellant did not attend mediation and Arbitration despite
being served with summons
2. The High Court erred in law in upholding the ex-parte award
of the Commission for Mediation and Arbitration issued by
the mediator.
3. That the High Court erred in law and fact in holding that the
respondent was unfairly terminated on procedural ground.
4. The High Court erred in law and fact in holding that the
respondent was entitled to annual leave payment.
637
Before us for hearing of the appeal, the appellant was represented by Mr. Benedict
Sahwi, learned counsel, whereas the respondent appeared in person and was
unrepresented. Both parties had filed submissions and they fully adopted them and
made some oral submissions to elaborate them. However, for a reason to be apparent
shortly, we shall not delve to recite the submissions in full. Instead, we shall only
refer to only those parts of the submissions relevant to the issue on which the
decision is grounded.
As our starting point, we wish to point out that it was not in controversy both in the
parties’ respective written and oral submissions that the first application to set aside
an ex-parte award which was filed within time was struck out for being incompetent.
That, then the second similar application was filed on 8/6/2016. Mr Sahwi was not
hesitant to concede that it was timed barred as it was made after the lapse of almost
100 days after the award was granted on 01/03/2016. For that reason, he admitted,
and rightly so in our view, that the High Court was correct in its finding and the
consequential order of quashing the second award and restoration of the ex-parte
award.
At that stage, the Court, suo motu, was troubled whether the learned judge was
justified to go further and examine the ex-parte award and vary it as she did.
Accordingly, the parties were invited to address the Court on that issue.
Mr. Sahwi was first to respond to our query. Without much ado, he readily conceded
that the learned judge strayed into an error when she examined the content and
validity of the ex-parte award and varied it. He argued that it was not an issue before
her. While referring to page 137 of the record of appeal (page 2 of the typed
judgment), he said that the issues for discussion were two; whether the termination
of employment contract was fair substantively and procedurally and to what reliefs
were the parties entitled to. Neither party had challenged the ex-parte award before
the High Court, he insisted. Looking rather confidently, he argued that since the
revision before the High Court emanated from the second award and the application
to set aside the ex-parte award having been found time barred and annulled, the High
Court ought to have had ended there and left it for an aggrieved party to challenge
the ex-parte award through a proper forum and procedure. He concluded by
638
imploring the Court to invoke its revisional powers under section 4(2) of the AJA
and quash the High Court decision varying the ex-parte award.
Addressing the Court on the issue raised by the Court, the respondent, for obvious
reasons that he is not learned on law, adopted the written submission he had earlier
on filed and argued that the learned judge was right to declare the second award
invalid because the application to set aside the ex-parte award was time barred.
As our take off, we shall, first consider whether the learned judge was proper in her
finding that the second application for setting aside the ex-parte award was time
barred. Fortunately, it is common ground that the judge was right. We entirely agree
with the parties. We have already shown that the ex parte award was issued on
1/3/2016 in which the CMA ordered the appellant to pay the respondent TZS
23,617,307.00. The first application to set aside an ex-parte award was lodged on
14/3/2016 but the same was struck out on 25/5/2016 for being incompetent. The
appellant successfully lodged another application to set aside the ex-parte award on
8/6/2016 which was almost 100 days after the ex-parte award was issued.
Nonetheless, the CMA entertained the application, granted the application on
25/5/2016 and set aside the ex-parte award. Subsequently, the CMA heard the
dispute and on 22/6/2016 found the respondent’s claims unfounded and dismissed
the same. Applying her mind on these facts, the learned judge, at page 249 of the
record of appeal concluded that:
…In my view, I find the decision of the mediator setting aside
the ex-parte award was incorrect. The second application
was filed after the lapse of more than sixty days from the
date the ex-parte award was issued. Therefore, the
respondent was required to first apply for extension of time
to file the application...having observed as such I quash the
CMA decision issued on 25/5/2016 setting aside the ex-parte
award. Having quashed this decision, the award issued on
22/6/2016 is automatically nullified because it lacks the base
to stand on as there is already an ex-parte decision issued by
the mediator. [Emphasis added]
With all due respect to the learned judge, the foregoing finding is partly incorrect
and partly correct. The finding suggests that the time limit for lodging an application
639
for setting aside an award is sixty days. She did not cite any law to that effect as
opposed to the respondent who had raised a preliminary objection in that respect and
cited Rule 31(1) of GN No. 64 of 2007 which, according to him, enjoined the
appellant to lodge the application to set aside within fourteen (14) days from the date
the ex- parte award was issued.
To us, we entertain no doubt that the relevant law governing time limit of lodging
an application for setting aside the ex-parte award is Rule 30(1) of the Labour
Institution (Mediation and Arbitration Guidelines) G.N. No. 64 of 2007 (henceforth
GN. No. 64 of 2007) which requires an application to set aside an award to be made
within fourteen (14) days from the date he became aware of the award sought to be
set aside. That Rule categorically states:
30-(1) An application by a party to correct or set aside an
arbitral award in terms of section 90 of the Employment and
Labour Relations Act shall be made within fourteen days
from the date on which the applicant became aware of the
arbitration award. (Emphasis added)
With the above exposition of the law, it was therefore incorrect for the learned judge
to peg the time limit on sixty days.
The foregoing notwithstanding, we agree with the learned judge that the second
application to set aside the ex-parte award was time barred. It was to be filed within
fourteen (14) days reckoned from the date when the appellants became aware of the
ex-parte award. It is common ground that the appellant's first application to set aside
the ex-parte award was filed on 14/3/2016 but was struck out on 25/5/2016. That
means the respondents were aware of the ex-parte award right from when they
lodged the first application to set aside. It is obvious that the application lodged on
8/6/2016 was filed outside the fourteen (14) days period prescribed under Rule 30(1)
of GN No. 64 of 2007. It was late.
In the circumstances, the proper course to be taken by the appellants, as rightly
directed by the learned judge, was to seek and obtain an order for extension of time
before lodging such an application. Unfortunately, and as conceded by Mr. Sahwi,
that was not done. The law is settled that the issue of jurisdiction for any court is
basic as it goes to the very root of the authority of the court or tribunal to adjudicate
640
upon cases or disputes. Courts or tribunals are enjoined not to entertain any matter
which is time barred and in any event they did so, the Court unsparingly declared
the proceedings and the consequential orders a nullity. In, for instance, John
Barnaba v. Hadija Shomari, Civil Appeal No. 195 of 2013 (unreported) the Court
pronounced itself thus:
Consequently, in line with what we have endeavoured to
traverse above, we hold that the Ward Tribunal of
Kinyangiri, lacked jurisdiction to entertain the land
dispute which was lodged by the respondent because it
was time barred. As a result, the proceedings before the
Ward Tribunal and those subsequent thereto, were nullity and
we nullify them. [Emphasis added]
The Court restated the afore stated legal position recently in Barclays Bank (T) Ltd
v. Jacob Muro, Civil Appeal No. 357 of 2019 (unreported) where it stated that:
In the final analysis, we allow the appeal. Since the CMA
acted without jurisdiction as the referral was time-
barred, we nullify its proceedings as well as its award. The
same fate befalls upon the proceedings in the High Court,
Labour Division as well as the decision thereon as they
stemmed from a nullity. [Emphasis added]
[See also Mayira B. Mayira and Four Others v. Kapunga Rice Project, Civil appeal
No. 359 of 2019 and The D.P.P. v. Bernard Mpangala and Two Others, Criminal
Appeal No. 28 of 2001 (both unreported) Since, in the present case, the second
application for setting aside the ex-parte award was time barred, the CMA lacked
jurisdiction to entertain it. The proceedings before it and the order setting aside the
ex- parte award were therefore a nullity. The ex-parte award therefore remained
unchallenged, hence intact as the learned judge rightly and firmly held.
Now reverting to the point of our concern, the crucial question becomes; was the
learned judge then justified to examine and vary the terms in the ex-parte award?
We should hasten to point out that she was not. At least two reasons would suffice
to justify our position. One; after making a finding that the second application for
setting aside the ex-parte award was time barred, the learned judge ought to have
641
allowed the revision and nullified both the proceedings and the order of the CMA
setting aside the ex-parte award. That would have been the end of the matter. Two;
Both the record of appeal and the learned judge's judgment were very particular on
the grounds upon which the revision application was premised by the respondent.
These, as reflected on pages 240 and 241 of the record of appeal (page 2 and 3 of
the judgment), were:
1. This Hon. Court be pleased to call for the records in the
Labour dispute with Reference No. CMA/MBY/141/2015;
2. Upon calling for the records, this Hon. Court examines and
revises the records, proceedings and award dated 22/6/2017
and satisfy itself as to the correctness, regularity and
propriety of the said CMA award; and
3. That this Hon. Court be pleased to set aside the CMA
Award and issue new decision, direction, orders or any other
reliefs that may deem fit and just to grant.
It seems clear to us that, in the application for revision, the respondent had intended
to ask the High Court to consider the propriety and correctness of the award dated
22/6/2017 (the second award). His major contention was that the ex-parte award was
set aside by the mediator who had wrongly entertained an application to that effect
which was time barred. From the grounds of the revision application recited above,
there is nothing suggesting or rather implying that the validity of the ex-parte award
was in any way being questioned. Worse still, the appellant had not applied for
revision of it.
In all, the revision application did not, in any respect, address the validity or
otherwise of the ex-parte award, and for that matter, its consideration and variation
of the terms that obtained in it was improper. Settled law is to the effect that parties
are bound by their pleadings. Similarly, courts have to hear and determine disputes
based on the pleadings. As an insistence for the courts to adhere and decide cases
basing on the parties' pleadings, we wish to seek inspiration and borrow a leaf from
the case of Lever Brothers Ltd v Bell (1931) 1 KB 557 at page 583 cited in Anthony
Ngoo and Another v. Kitinda Kimaro, Civil Appeal No. 25 of 2014 (unreported) in
which Scrutton L J, stated that:
642
The practice of the courts is to consider and deal with
legal result of pleaded facts, although the particular legal
result alleged is not stated in the pleading. [Emphasis added]
Equally important and by analogy, appeals and revisions must be decided on the
grounds raised and if a party desires to raise or add other grounds, he must place
them before the court. In the present case the validity of the ex-parte award was not
at issue as it was not raised as a ground of revision. The learned judge should not
have taken the course of considering it and varying it.
It is apparent that the issues the learned judge formulated to act as a rider in her
determination of the revision application, manifestly, boomeranged, for they bore
unexpected outcome because they misled her for involving consideration of the
validity of the ex-parte award. The said issues as reflected at Pages 248 and 249 of
the record of appeal (page 10) of the judgment were:
1. Whether it was proper for the CMA to entertain an
application made out of time by the respondent to set aside
the ex-parte award.
2. Whether it was correct for the Mediator to issue an award
upon deciding the matter.
3. Whether there was unfair termination.
4. Whether the reliefs granted were justified and correct.
[Emphasis added]
We are mindful of the fact that the revision application before the judge was initiated
by the respondent whose claims were dismissed by the CMA. Looking at the issues
raised, we think that it escaped the mind of the learned judge that before her there
were therefore no reliefs granted worth her consideration. She consequently ended
up falling into the trap of erroneously discussing the validity of the ex-parte award
which was not at issue.
It is clear, then, from the above set of facts that the learned judge strayed into error
when she considered the validity of ex-parte award which was not an issue before
her.
643
For avoidance of doubts, the appellant's second application for setting aside the ex-
parte award was time barred. The proceedings before the CMA and the order by it
setting aside the ex-parte award as well the proceedings of the High Court and the
order varying or altering the ex- parte award are a nullity. The ex-parte award, in the
circumstances, remains so far unchallenged.
Without discussing the other grounds of grievance fronted by the appellant in the
memorandum of appeal, we are satisfied that the above considerations are sufficient
to dispose of the appeal.
We are constrained, in the end, to go along with Mr. Sahwi's proposal that we
should invoke our powers of revision so as to correct the apparent error on the face
of the record. Accordingly, invoking our powers under section 4(2) of AJA, we
hereby quash and nullify the proceedings of the CMA setting aside the ex-parte
award and those of the High Court varying the reliefs granted by the CMA in the ex-
parte award and we also set aside the grant of a total sum of TZS 11,200,000.00 as
an award to the respondent by the High Court. We make no order for costs.
Proceedings quashed
TANZANIA POSTS CORPORATION v. JEREMIAH MWANDI

AT KIGOMA
(MKUYE, SEHEL, and GALEBA, JJ.A.)
(Appeal from the Decision of the High Court of Tanzania at Kigoma, Matuma, J.,
dated 13th May, 2020, in Labour Revision No. 06 of 2020)
Jurisdiction – High Court ordered that dispute before the court be sent back to the
CMA for determination on merit – whether the order was an interlocutory order and
644
whether the Court had jurisdiction to entertain the appeal founded on that order-
section 5(2)(d) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019] (the AJA).
Interpretation – word “suit’’; “interlocutory order and interlocutory proceedings’’
– their meaning and determination thereof.
Interlocutory order – tests for determining whether the order is interlocutory or
otherwise.
The respondent was employed by the appellant as a clerk. His employment was
terminated on allegations of misconduct. His appeal to the appellant's Postmaster
General was dismissed. Still aggrieved, the respondent instituted a labour matter
before the Commission for Mediation and Arbitration. The CMA ruled that it had
no jurisdiction to preside over a labour matter involving a public servant on one hand
and a public body on the other in terms of section 32A of the Public Service Act.
That decision of the CMA aggrieved the respondent who filed a revision before the
High Court. The High Court reversed the decision of CMA. Aggrieved by the
decision of the High Court, the appellant filed the present appeal.
Held: i) The word “suit” includes all proceedings where parties are asserting their
rights which are disputed by their counterparts in a court of justice. It also includes
a petition for staying proceedings in the High Court pending reference of the dispute
to arbitration.
ii) Orders that do not completely dispose of all issues of law and fact that were
presented to the court are interlocutory decisions or orders; and the proceedings from
which they emanate are, interlocutory proceedings. Such orders, under the law of
this country are not appealable to this Court in view of section 5(2) (d) of the AJA
iii) The law requires that in order to determine whether the order is interlocutory or
final, the test applicable is "the nature of the order test'.
iv) The test requires answers to more or less two questions in the context of the
matter before the court; one, what were the remedies that were sought or the rights
that the respondent was seeking to enforce or obtain from the High Court? And two,
were all such rights or remedies conclusively determined by the High Court or there
are certain matters in relation to the same rights that remained pending for
determination at the High Court?
iv) In terms of the “nature of order test”, if the answer to question two is that
everything at the High Court was finally and conclusively wound up, the decree in
645
revision will be a final decree and the bar at section 5(2)(d) of the AJA will not
apply.
v) If the decree in revision by the High Court left an issue or issues at the same court,
the High Court, undetermined, then the decree in revision is an interlocutory order
and this Court will not have jurisdiction to determine the appeal in view of section
5(2)(d) of the AJA.
Objection overruled
Cases referred to
(1) Board of Trustees of the Public Service Pensions Fund v. lalia Mayanja and
Godfrey Ngonyani, Labour Revision No. 248 of 2017;
(2) Tanzania Teachers Union v. The Chief Secretary and Others, Civil Appeal
No. 96 of 2012;
(3) Tanzania Motor Seu-vices Ltd v. Mehar Singh t/a Thaker Singh, Civil Appeal
115 of 2005
(4) JUNACO (T) Limited and Justin Lambert v. Harei Mallac Tanzania Limited,
Civil Application No. 473/16 of 2016,
(5) Murtaza Ally Mangungu v. The Returning Officer of Kilwa and two Others,
Civil Application No. 80 of 2016; and
(6) Peter Noel Kingamkono v. Tropical Pesticides Research, Civil Application
No. 2 of 2009
(7) Vodacom Tanzania Public Limited Liability Company v. Planetel
Communications Limited, Civil Appeal No. 43 of 2018;
(8) MIC Tanzania Limited and Three Others v. Golden Globe International
Services Limited, Civil Application No. 1/16 of 2017
(1) Section 5(2)(d) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019];
(2) Section 32A of the Public Service Act [Cap 298 R.E. 2002]; and
646
(3) Section 57 of the Labour Institutions Act, No. 7 of 2004.
Mr. Nyoni, Principal State Attorney and Mr. Rumisha, State Attorney, for
Appellant
Mr. Aliki, for Respondent
RULING OF THE COURT

GALEBA, J.A.: Jeremiah Mwandi, the respondent, was employed by the appellant
as a clerk up to 16th January 2019 when he was terminated by the appellant's
Regional Manager on allegations of misconduct. His appeal to the appellant's
Postmaster General was dismissed. Still aggrieved, the respondent filed Labour
Dispute No. CMA/KIG/DISP/99/2019 in the Commission for Mediation and
Arbitration for Kigoma at Kigoma (the CMA). The claim lodged was for payment
of compensation on account of allegations of unfair termination by the appellant
which did not comply with the principles of natural justice in the processes of
terminating the respondent.
As for the appellant, in addition to disputing the substantive claims of the
respondent, it lodged a notice of preliminary objection inviting the CMA to strike
out the complaint because the forum had no jurisdiction to entertain it. The reason
advanced in the notice was that the complaint was lodged in the CMA prematurely
as the respondent lodged it there without first exhausting internal dispute settlement
procedures established within the appellant as a statutory body. According to the
appellant, that offended regulation F.4 of Tanzania Posts Staff Regulations 2014 (the
Staff Regulations) and section 32A of the Public Service Act [Cap 298 R.E. 2002]
as amended by the Written Laws (Miscellaneous Amendments) (No. 3) Act of 2016
(the Public Service Act).
The objections were argued by parties and by a ruling delivered by the CMA, (Hon.
Doris A. Wandiba, Arbitrator) on 29.09.2019, the CMA upheld the objections and
struck out the respondent's Labour Dispute No. CMA/KIG/DISP/99/2019.
647
Essentially, the CMA ruled that it had no jurisdiction to preside over a labour matter
involving a public servant on one hand and a public body on the other in terms of
section 32A of the Public Service Act, which provides that:
A public servant shall prior to seeking remedies provided for
in the labour laws, exhaust all remedies as provided under the
Act.
In striking out the dispute, the CMA stated at page 149 of the record of appeal that:
For the above reasons the dispute is prematurely before the
commission and it must therefore be hushed through the exit
door. It is accordingly struck out.
In deciding as above, the CMA too, relied on many decisions of the High Court
including the Board of Trustees of the Public Service Pensions Fund v. lalia
Mayanja and Godfrey Ngonyani, Labour Revision No. 248 of 2017, Nyerere J. (as
she then was) (unreported).
That decision of the CMA aggrieved the respondent who approached the High Court
and filed Labour Revision No. 06 of 2020, moving that court to revise it because,
according to him, the CMA had jurisdiction to hear and determine his grievance. To
be particular with the prayer made in the High Court, let the substance of the prayer
in the chamber summons speak for itself:
1. This Honourable Court be pleased to call and examine the
records of the Labour Dispute No. CMA/KIG/DISP/99/2019
of the Commission for Mediation and Arbitration for Kigoma
and be pleased to revise the same accordingly.
2. Any other order(s) this Honourable Court may deem just
and fit.
The substantive question for determination in the High Court was therefore whether
the CMA had jurisdiction to hear and determine the respondent's complaint that had
been struck out.
There was raised some preliminary objections before the High Court but the same
were all overruled and the substantive matter quoted above from the chamber
summons was heard. The High Court, Matuma J. after taking into account the
648
appellant's Staff Regulations and other laws which are not immediately relevant for
this ruling, he agreed with the respondent that indeed the CMA had jurisdiction to
hear and determine Labour Dispute No. CMA/KIG/DISP/99/2019. Consequent to
that finding, the High Court remitted the record to the CMA for determination of the
respondent's complaint on merits. The decree of the High Court at page 229 of the
record of appeal states that:
1. The applicant's complaint at the CMA was competent and
it was wrongly rejected.
2. The application of the Applicant at the CMA is hereby
restored and ordered to be heard on merits.
The appellant was aggrieved with the above order. On 11.09.2020, he filed the
present appeal predicating it on four (4) grounds of appeal which for reasons that
will become apparent shortly, we will not reproduce them in this ruling.
At the hearing of the appeal on 13.07.2021, the appellant was represented by Mr
Deodatus Nyoni learned Principal State Attorney assisted by Mr. Erigh Rumisha
learned State Attorney. The respondent had the services of Mr. Sadiki Aliki, learned
advocate.
Prior to commencement of hearing of the appeal, Mr. Aliki rose to inform the Court
that although the appeal was for hearing, the Court had no jurisdiction to entertain it
in view of section 5(2)(d) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019]
(the AJA). Elaborating on his point, he submitted that the order of the High Court
challenged before us was an interlocutory relief because the High Court did not
determine the merits of the matter between the parties. He added that the issue of
unfair termination which is the substantive dispute between the parties was remitted
to and is presently pending determination before the CMA. He submitted that, by
law, this Court cannot hear and determine an appeal in respect of a matter which has
not been heard and finally determined on merits. Counsel, did not refer us to any
authority to support his arguments. He moved the Court to strike out the appeal for
being incompetent, based on his arguments.
In reply, Mr. Nyoni, made a long submission but what we were able to gather from
him was that this Court has jurisdiction to hear and determine an appeal arising from
a labour dispute irrespective of whether the order appealed against is interlocutory
649
or final, provided that the appeal is on a point of law. To back his position, he relied
on section 57 of the Labour Institutions Act, No. 7 of 2004 (the Labour Institutions
Act) and Rule 54 of the Labour Court Rules 2007, GN No. 106 of 2007, (the Labour
Court Rules). He submitted that whereas section 5(2) (d) of the AJA was the general
provision, the specific law relevant to guide us in the present scenario is section 57
of the Labour Institutions Act. Mr, Nyoni was, however, not clear on whether the
order of the High Court in this appeal was interlocutory or final, and like Mr. Aliki,
he did not rely on any authority in which this Court has decided that an interlocutory
order may be appealed against to the Court notwithstanding the provisions of section
5(2)(d) of the AJA. Mr. Nyoni only referred us to the case of Tanzania Teachers
Union v. The Chief Secretary and Others, Civil Appeal No. 96 of 2012 (unreported),
a decision, which as we will observe at some point in this ruling, that it is
distinguishable.
Alternatively, Mr. Nyoni submitted that in case we find that indeed the order of the
High Court was interlocutory and that an appeal against the order is restricted by the
provisions of section 5(2) (d) of the AJA, then this Court be pleased to invoke the
provisions of section 3A, 38 and 4(2) and (3) of the AJA and permit him to argue
the appeal because there are many conflicting decisions of the High Court on the
subject matter.
Mr. Nyoni implored us to overrule the objection so that the appeal can be heard on
merits.
In rejoinder Mr. Aliki contended that for the point of law to be appealable under
section 57 of the·Labour Institutions Act, it must first be a final decree as required
by section 5(2) (d) of the AJA. He argued that this Court cannot invoke the
overriding objective principle in order to circumvent the statutory requirements of
section 5(2)(d) of the AJA, reiterating his earlier stance that this appeal is
incompetent.
On our part, having attentively heard counsel on their submissions and critically
reviewed the order of the High Court challenged before us, we are of the view that
the issue for resolution before this Court is whether the Decree in Revision of the
High Court, Matuma J. dated 13.05.2020 was an interlocutory relief or it was a final
decree. After answering that question, the order we will make in respect of the
650
objection raised on behalf of the respondent will have become obvious and easy to
pronounce.
We now turn to examine both statutory and case law on the point raised by counsel,
and as the central axis around which their submissions kept oscillating is section 5(2)
(d) of the AJA, we will start with that provision. The section provides that:
(2) Notwithstanding the provisions of subsection
(1)-
(d) no appeal or application for revision shall lie against or be
made in respect of any preliminary or interlocutory decision
or order of the High Court unless such decision or order has
the effect of finally determining the suit. [Emphasis
added].
It is important first to make our position clear on what does the term “suit” mean in
the above section of the AJA as any obscurity on its contextual meaning could result
in yet another confusion as we proceed. This Court in Tanzania Motor Seu-vices Ltd
v. Mehar Singh t/a Thaker Singh, Civil Appeal 115 of 2005 (unreported), adopted a
wider definition of the word “suit” to include all proceedings where parties are
asserting their rights which are disputed by their counterparts in a court of justice.
The Court quoted with approval a definition of the term “suit” from the Law
Lexicon, Encyclopedia & Commercial Dictionary, 2002 (reprint) at page 1831 and
construed the term to include a petition for staying proceedings in the High Court
pending reference of the dispute to arbitration. According to that Dictionary:
The term “suit” is a very comprehensive one and is said to
apply to any proceeding in a Court of Justice by which an
individual pursues a remedy which the law affords him. The
modes of proceedings may be various; but if the right is
litigated between the parties in the Court of Justice the
proceeding is a suit.
In our considered view, as the respondent was asserting his statutory right of revision
available to him under rule 28 of the Labour Court Rules, without any further ado,
we affirm that the proceedings before Matuma J. in the High Court were “a suit” in
the context of section 5(2)(d) of the AJA and for purposes of this ruling.
651
Next is, was the Decree in Revision that the High Court passed in the proceedings
before it, interlocutory or was it final?
In Seif Sharif Hamad v. S.M.Z., [1992] T.L.R. 43, it was held that this Court has no
jurisdiction to entertain an appeal challenging an interlocutory order. The Court
further adopted the definition of the phrase “interlocutory order” from Blacks Law
Dictionary (4th Edition) to mean:
An order which decides not the cause, but settles some
intervening matter relating to it.
The 9th Edition of the same dictionary uses different words to derive the same
understanding, it defines an “interlocutory order.” to mean:
An order that relates to some intermediate matter in the
case, any order other than the final.
In our view, what the above definitions entail, is that the orders that do not
completely dispose of all issues of law and fact that were presented to the court are
interlocutory decisions or orders; and the proceedings from which they emanate,
interlocutory proceedings. Such orders, under the law of this country are not
appealable to this Court in view of section 5(2) (d) of the AJA quoted above.
In JUNACO (T) Limited and Justin Lambert v. Harei Mallac Tanzania Limited, Civil
Application No. 473/16 of 2016, (unreported) this Court having discussed the same
issue (how to detect whether an order is interlocutory or final) in Murtaza Ally
Mangungu v. The Returning Officer of Kilwa and two Others, Civil Application No.
80 of 2016 and Peter Noel Kingamkono v. Tropical Pesticides Research, Civil
Application No. 2 of 2009 (both unreported) and seeking to answer the same, it
stated that:
In view of the above authorities, it is therefore apparent that
in order to know whether the order is interlocutory or not, one
has to apply “the nature of the order test”. That is, to ask
oneself whether the Judgement or order complained of finally
disposes of the rights of the parties. If the answer is in the
affirmative, then it must be treated as a final order. However,
if it does not, it is then an interlocutory order. [Emphasis
added].
652
Before getting any further, we subscribe to the appropriate pronouncement of law in
the above quotation, which requires that in order to determine whether the order is
interlocutory or final, the test applicable is "the nature of the order test' In this matter
we will apply the very test in determining whether the order of the High Court was
interlocutory or it was final. After determining that issue, the rest will be simple.
It is significant at this point in the context of the decision in Augustina Masonda v.
Widmel Mushi, Civil Application No. 383/13 of 2018 (unreported), where while
discussing the sole import of section 5(2) (d) of the AJA, the Court stated:
That section (5(2) (d) of the AJA), as already hinted at the
beginning of this ruling, prohibits appeals and applications
for revision from interlocutory orders of the High Court
which do not have the effect of finally and conclusively
disposing matters before that court. [Emphasis added].
We added emphasis in the above quoted part of the decision of this Court in order to
underscore the importance of the venue of where the rights of parties must be
conclusively determined. In our case, the conclusiveness of the order must be at the
High Court and not before any other fora.
Now back to the “the nature of the order test”. That test requires answers to more
or less two questions in the context of the matter before us; one, what were the
remedies that were sought or the rights that the respondent was seeking to enforce
or obtain from the High Court? And two, were all such rights or remedies
conclusively determined by the High Court or there are certain matters in relation to
the same rights that remained pending for determination at the High Court? In terms
of the “nature of order test”, if the answer to question two is that everything at the
High Court was finally and conclusively wound up, the decree in revision will be a
final decree and the bar at section 5(2)(d) of the AJA will not apply. Conversely, if
the decree in revision by the High Court left an issue or issues at the same court (the
High Court) undetermined, then the decree in revision is an interlocutory order and
this Court will not have jurisdiction to determine the present appeal in view of
section 5(2)(d) of the AJA.
The above is the substance, in our view, of the “the nature of the order test” which
has been applied in many decisions of this Court including Murtaza Ally Mangungu
653
(supra), Seif Sharif Hamad (supra), Peter Noel Kingamkono (supra) and Augustina
Masonda (supra). Other relevant decisions in which the test was applied are
Vodacom Tanzania Public Limited Liability Company v. Planetel Communications
Limited, Civil Appeal No. 43 of 2018 and MIC Tanzania Limited and Three Others
v. Golden Globe International Services Limited, Civil Application No. 1/16 of 2017
(both unreported)
To make some headway, at this point it is opportune, we propose, to consider the
nature of the rights or remedies that were presented to the High Court and decide
whether they were finally and conclusively disposed of or they were not.
The application for revision which was filed by presenting the notice of application
and the chamber summons and determined by the High Court was preferred under,
rules 24 and 28 of the Labour Court Rules. Whereas rule 24 provides for the
procedure of how to present applications to the High Court, rule 28(1) creates a right
for a person who feels aggrieved or dissatisfied with an order or orders of the CMA
to file an application for revision to the High Court. Rule 28(1) of the Labour Court
Rules provides:
28. The Court may, on its own motion or on application by
any party or interested person, call for the record of any
proceedings which have been decided by any responsible
person or body implementing the provisions of the Acts and
in which no appeal lies or has been taken
thereto, and if such responsible person or body appears-
(a) to have exercised Jurisdiction not vested in it by law; or
(b) to have failed to exercise jurisdiction so vested; or
(c) to have acted in the exercise of itsjurisdiction illegally
or with material irregularity; or
(d) that there has been an error material to the merits of
the subject matter before such responsible person or body
involving injustice,
(e) the Court may revise the proceedings and make such
order as it deems fit: Provided that, any party to the
proceedings or otherwise likeiy- to be adversely affected
654
by such revision shall be given an opportunity to be heard.
[Emphasis Added]
The above provision therefore creates a right in favour of any party to the
proceedings in the CMA to apply for revision of the order of the CMA to the High
Court. In this case we indicated earlier that right or remedy that the respondent was
seeking from the High Court was to "call and examine the records of the Labour
Dispute No. CMA/KIG/DISP/99/2019 of the Commission for Mediation and
Arbitration for Kigoma and be pleased to revise the same accordingly”. It is our
considered position that that was the right or remedy which the respondent was
moving the High Court to resolve or to grant him. Luckily, the court held in his
favour. It revised the order of the CMA and ordered it to hear parties on the
substantive matters that they had earlier presented before it. In our view, as far as
the High Court was concerned, it dealt with all rights sought before it and granted
the remedies. To us, there is no issue pending in the High Court in respect of Labour
Revision No. 06 of 2020 and neither did Mr. Aliki nor Mr. Nyoni point to us any
aspect of either law or fact that remained undetermined in the High Court.
There is one point involving the characters or differences of the matters we have in
focus; that pending in the CMA and the revision which is now closed in the High
Court. It is significant that we say something in that line as it appears, it was because
of the mix up of the two that Mr. Aliki submitted to us the way he did.
The point is; the complaint of the respondent in the CMA is completely different
from the revision he filed in the High Court. The remedies expected from orders of
the CMA are different from remedies that were sought and obtained from the High
Court. Whereas the CMA was being asked to order compensation founded on
allegations of unfair termination, in the High Court, the respondent was seeking
revision orders of the CMA, founded on statute. Literally, the claim in the CMA had
no and has no relation with what the High Court was being asked to order, meaning
that the fact that the CMA has not heard and finally determined the issues that were
presented to it does not mean that the High Court too, has not heard to finality matters
that were presented before it.
As for the submission of parties, starting with Mr. Aliki, his view was that because
the dispute before the CMA has not been heard on merits, then the decree in revision
655
that was passed by the High Court is interlocutory. We have amply demonstrated
that the High Court was handling revision proceedings commenced by the
respondent and not interlocutory proceedings. The application before the High Court
was fully heard and conclusively determined leaving nothing behind for
determination before it. As there is nothing pending in the High Court in the
aftermath of Matuma J.'s decree in revision at the High Court, we dismiss the
argument by Mr. Aliki and hold that the order of the High Court was a final decree.
On his part Mr. Nyoni, submitted that as the appellant had a right to appeal under
section 57 of the Labour Institutions Act on a point of law and rule 54 of the Labour
Court Rules, it is immaterial that the order is interlocutory or final. According to him
on both occasions, the order is appealable notwithstanding the provisions of section
5(2)(b) of the AJA. We will start with section 57 of the Labour Institutions Act,
which provides that:
Any party to a proceeding in the Labour Court may appeal
against the decision of that Court to the Court of Appeal on a
point of law only.
Rule 54 of the Labour Court Rules provides:
Subject to the provisions of section 57 if the Alt any appeal
to the Court of Appeal of Tanzania shall be in conformity or
as nearly as possible with the provisions of the Tanzania
Court of Appeal Rules 1979.
With respect to the learned Principal State Attorney, we have failed to read anything
in the above section and rule which has the effect of permitting appeals in labour
matters to the Court of Appeal challenging interlocutory orders. The case of
Tanzania Teachers Union (supra) held that appeals under section 57 of the Labour
Institutions Act, do not require leave under section 5(1)(c) of the AJA. We neither
located nor did Mr. Nyoni indicate to us any part of that judgement where it was
held that appeals under section 57 of the Labour Institutions Act, need not comply
with the requirements of section 5(2) (d) of the AJA. We therefore do not agree with
counsel that the above provision (section 57) creates a special privilege in favour of
losers in labour matter before the High Court to appeal to this Court in disregard of
section 5(2)(b) of the AJA. That practise came to an end in 2002 when Act No. 25
656
of 2002 was passed among other provisions introducing the above provision of the
AJA to restrict appeals and applications for revision challenging preliminary and
interlocutory decisions leaving behind the main proceedings in the High Court.
In view of the foregoing, we have no hesitation to hold that the decree in revision
which was passed in Labour Revision No. 06 of 2020 before the High Court at
Kigoma, is a final decree of that court and not an interlocutory decree or order. We
accordingly overrule the objection raised and under Rule 38A (1) of the Rules, we
adjourn hearing of this appeal which we find to be competent before the Court to a
future date to be fixed by the Registrar.
Objection overruled
TANZANIA BREWERIES LIMITED v. MOHAMED KAZINGUMBE

AT DAR ES SALAAM
(MUNUO, RUTAKANGWA, and MASSATI, JJ.A.)
(An Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es
Salaam, Mandia, Oriya, Shangwa, JJJ., dated 13th April, 2007 in Civil Appeal No
125 of 2005)
Rules of natural justice – Chairman of the ICT sitting in its original jurisdiction
heard and determined the matter – the same Chairman heard and determined the
matter while the ICT was sitting in its revisional jurisdiction – whether this
manifested breach of the nemo judex in causa sua rule – section 28(2) of the
Industrial Court Act 1967.
Natural justice – Rule requires absence of bias – Circumstances in which the rule
may be dispensed with
657
Interpretation – Canon rules of interpretation - presumption against absurdity –
whether applicable in interpreting section 28 (2) of Industrial Court of Tanzania
Act, 1967.
The Respondent was employed as a Human Resources Manager by the Appellant.

He was dismissed from his employment. Aggrieved by the dismissal, he lodged a
complaint with the Labour Commissioner. The Labour Commissioner referred the
dispute to the Industrial Court of Tanzania (ICT). The ICT chaired by its Chairman
and assisted by two assessors heard and determined the matter in favour of the
respondent. The appellant was dissatisfied with the ruling and the award of the ICT,
hence, applied for revision of the ruling and award before the same ICT. On revision
the ICT was properly constituted if it was chaired by the same Chairman assisted by
two Deputy Chairmen and two assessors. The application for revision was
dismissed. The appellant was dissatisfied with the decision and lodged an appeal
with the High Court. The High Court also found in favour of the respondent. The
appellant was dissatisfied with the entire decision, and hence, this appeal.
Held: i) To give full effect to the clear intention of Parliament, and therefore avoid
amending the law, unjustifiably, in the exercise of its revisional powers, the I.C.T.
was to be constituted by its Chairman, sitting with two Deputy Chairmen and two
assessors.
ii) Section 28 (2) of the Act is clear, plain and unambiguous. It is clear that
Parliament expressly intended the Chairman of the I.C.T. always to be a member of
the panel sitting in all revision proceedings, regardless of whether the impugned
decision and award were delivered by him or her.
iii) There is no room for substituting the Chairman of the I.C.T. Natural justice,
therefore, is displaced not only by the doctrine of necessity but also expressly by
clear statutory provisions, that is, by Parliament.
Cases referred to
(1) Fisher v. Bell [1961] 1 Q.B. 394;
(2) Union Of India v. Tulsam Patel, (1985) 3 scc 398, AIR 1985 SC 1416;
(3) Rash Lal Yadav (Dr) v. State of Bihar, JT 1994 (4) SC 228;
658
(4) The Judges v. Attorney General for Saskatchewan (1937) T.L.R. 464;
(5) VIP Engineering & Marketing Ltd & 2 Others v. Citibank Tanzania Ltd,
Civil Reference Nos. 6, 7 and 8 of 2006;
(6) Election Commission of India v. Subramantan Swamy, SC 1810;
(7) Attorney-General for Canada v. Hallet & Carey Ltd. [1952] A.C. 427;
(8) Westminster Bank Ltd v. Zang [1966] A.C. 181; and
(9) Farrel v. Alexander [1976] 2 ALL ER 721, P. 736.
Statutory provisons referred to
(1) Section 28(2) of the Industrial Court Act 1967.
Mr. Tenga, for Appellant


RUTAKANGWA, J.A.: The Respondent was working as the Appellant Company's

Human Resources Manager up to 16th March, 1998 when he was dismissed from the
job. He was aggrieved by the dismissal. He lodged a complaint with the Labour
Commissioner.
The Labour Commissioner referred the dispute to the Industrial Court of Tanzania,
henceforth the I.C.T., for an enquiry. He did so under section 6 (2) of the now
repealed Industrial Court of Tanzania Act, 1967, henceforth the Act. Enquiry No. 47
of 1999 of the I.C.T. or the Enquiry, was opened.
The Enquiry was conducted by Mwipopo. J. The latter was the Chairman of the
I.C.T. The Chairman of the I.C.T. was appointed by the President of the United
Republic of Tanzania under section 17 (1) of the Act. The Act provided for the
appointment of only one Chairman of the I.C.T. who was to be a judge of the High
Court of Tanzania, and a number of Deputy Chairmen who were not judges. In the
exercise of its original jurisdiction, the I.C.T. was duly constituted when presided
659
over by the Chairman or a Deputy Chairman being assisted by two assessors. In
Enquiry No. 47 of 1999, the Chairman sat with two assessors.
Mwipopo, J. delivered the ruling of the I.C.T in the enquiry on 17th July, 2004. The
appellant was dissatisfied with the ruling and the award emanating therefrom. It
applied for revision of the same under section 28 of the Act.
The composition of the I.C.T. while sitting to hear a revision application was clearly
spelt out in section 28 (2) of the Act. It read as follows:
28 (2) - The Court shall, when exercising Jurisdiction under
subsection (1) be properly constituted, if itis presided over
by the Chairman sitting with two Deputy Chairmen and two
Assessors, all different from those who sat on the Court when it
first heard the dispute. [Emphasis is ours.]
Anyone aggrieved by any decision of the I.C.T had a right, under section 27 (lC), to
challenge it in the High Court.
In hearing the revision application of the Appellant, the I.C.T. was presided over by
the Chairman (Mwipopo, J.) and two Deputy Chairmen (Samba and Mipawa), sitting
with two assessors (Pazi and Machingu). The application was dismissed. The
appellant was aggrieved and lodged an appeal (Civil Appeal No.125 of 2005) in the
High Court at Dar-es-Salaam.
In that appeal, the appellant had preferred four (4) grounds of appeal. These were as
follows:
(a) That the court erred in law in holding that
misappropriation was incomplete because there was mere
preparation and no asportation.
(b) That the Court erred in law and fact where it held that
the Respondent's acts were minor misconducts punishable by
reprimand ‘onyo kali la maandishi,’ and did not amount to
fraudulent and dishonest behaviour.
(c) That the coourt erred in law and fact where it held that even
if the Respondent is guilty of minor misconduct still he did not
660
enjoy the said three crates because they remained in the hands
of the Appellant.
(d) That the Court erred in law and fact in that it had no
Jurisdiction to entertain revision as it was improperly
constituted.
The respondent resisted the appeal and urged the High Court to affirm the decision
appealed against.
In determining the appeal before it, the High Court found it convenient to confine
itself to the last ground of appeal. In answering this ground of complaint, the High
Court said:
... We are of the opinion that there was nothing untoward in the
Chairman of the Industrial Court presiding over the original
proceedings and revisional panel. Section 28 (1) of the I.C.T.
sets out the composition of revisional panel as the Chairman
sitting with two Deputy Chairmen and two assessors different
from those who sat on the court when it first heard the dispute.
Section 2 of the Industrial Court Ad defines Chairman thus:
‘Chairman 'means the Chairman, appointed under section 17;’
Since Section 17 which constitutes the Industrial Court of Tanzania establishes the
post of Chairman for purposes of original jurisdiction under section 16 of the same
Act, and since section 28 (2) which constitutes the revisional court also refers to the
Chairman as appointed under section 17, the law envisaged the chairman of the I.CT.
to sit both in original Jurisdiction and in revisional proceedings.
Unwholesome as the situation is, it is the law as currently
provided. For this reason, we dismiss the fourth ground.”
[Emphasis is ours].
We have provided the emphasis because we, too, have similar sentiments and we
agree with this apt observation. On the first three grounds of appeal, the High Court
said:
661
.... We are of the settled opinion that the issues raised in the first
three grounds are issues of fad not law, though the second and
third are shown as issues of mixed fact and law .... It is an
established principle of law that an appellate court, as we are,
cannot interfere with a decision of a lower court based on
findings of fact unless the findings are so grotesque as to
occasion a failure of justice. This being the case, we cannot say
there is an error made by the lower courts warranting
intervention by this court. We therefore find the first three
grounds not established and we dismiss them.
The appellant was dissatisfied with the entire decision, and

hence, this appeal, which was urged by Mr. Cuthbert Tenga,
learned advocate, on behalf of the appellant. The respondent
fended for himself in resisting this appeal.
The appellant has lodged a memorandum of appeal containing
only two grounds of appeal. The gist of the two complaints is
that:
(a) the learned appellate judges erred in law in dismissing its

appeal in total disregard of their elaborate
arguments going to establish that there was a breach of
the cardinal principle of natural justice to the effect that no one
shall be a judge in his own cause, and
(b) that the learned appellate judges erred in law in not rendering
any decision on grounds of appeal (a), (b) and
(c).
In his brief but focused submission in support of the appeal, Mr.

Tenga lucidly took us through established law to the effect that
in the administration of justice, two principles of adjudication
are fundamental and paramount. The two, he pressed, should be
strictly observed by judicial and quasi-judicial bodies. These are
that:
662
(i) No man shall be condemned unheard, and,
(ii) No man shall be a judge in his own cause (Nemo judex in
causa sua).
A decision arrived at in breach of these rules or principles or any

one of them, he stressed, is a nullity. He cited to us a number of
very persuasive authorities in support of his stance. He
accordingly urged us to hold that Mwipopo J. acted in breach of
the second principle and his participation, in the revisional
proceedings nullified the same.
We should point out at once that we are in full agreement with the submission of Mr.
Tenga on the importance of observing and giving full effect to the two cardinal
principles of natural justice when one is determining the rights, duties and/or
obligations of others. We are equally settled in our minds that it is settled law that
failure to observe these rules will in almost all cases invalidate the decision, even if
the same decision would have been arrived at had there been no violation of them.
Therefore, the overriding need of complying with the rules of natural justice cannot
be over - emphasized again here. That is all we can say, in passing before directing
our minds to the grave complaint against the Chairman of the I.C.T. and the appellate
judges who condoned the apparent violation of the rule against bias by Mwaipopo,
J. in Revision No. 20 of 2004.
The respondent, as expected, urged us to dismiss this ground of appeal because
Mwipopo, J. sat on the panel, not because he wanted to be a judge in his own cause,
but because the law explicitly required him to sit on the panel. There is, therefore,
no dispute here on the crucial fact that Mwipopo, J. sat on a panel which decided
the appellant's application for the revision of his own decision and award in Enquiry
No. 47 of 1999. This, on the face of it, was a manifest breach of the nemo judex in
causa sua rule. What, then, were the legal consequences of this breach to the decision
of I.C.T. in the peculiar circumstances of this case?
We appreciate that many invaluable treatises, articles, etc, have been written and
published appraising the inviolability of the principles of natural justice in the work
663
of dispensing justice. Many judicial pronouncements have also been made on the
issue in many decided cases by courts and tribunals in diverse jurisdictions.
Indeed, Mr. Tenga as already alluded to, has referred us to some of these treatises
and not less than ten decided cases. In our quest for a satisfactory answer to this
particular ground of complaint we have read all these references in favour of his
cause and indeed even more than those cited to us. From our study of the voluminous
material at our disposal, one clear fact has emerged. This is that the concept of
natural justice as a navigation guide towards the achievement of substantive justice
has two sides. The common side is the one elaborated on or advocated by Mr. Tenga.
The other side, like the leaendarv African Panaolin, is rarelv encountered in real
life and/or practice. This is that occasions may arise when a man may be required to
be a Judge in his own case. This can arise under two clear situations. These are under
the doctrine of necessity and/or where Parliament so directs. We shall elaborate a
bit.
In an illuminating article by Plucknett, “Bonham's Case and Judicial Review”
(1926) 40 Havard LR. 30, cited by S.A. de Smith in his JUDICIAL REVIEW OF
ADMINISTRATIVE ACTION, at page 140, it is asserted that, “[I]t is doubtful
whether a court ever held a statute to be void solely because it made a man a Judge
in his own cause...” The learned authoritative author (de Smith) relying on a number
of decided cases, further affirms:
... That Parliament is competent to make a man judge in his own
cause has long been indisputable; (ibid).
But he adds this valid caveat:
... but the courts continue to uphold the common law tradition
by declining to adopt such a construction of a statute if its
wording is open to another construction. (ibid).
We accept the assertion that a statute may expressly or by necessary implication
exclude the application of natural justice. This is because, subject to the provisions
of the Constitution, “Parliament in its wisdom, in passing an Act must be taken to
know the general law” (see: Fisher v. Bell [1961] 1 Q.B. 394 at p. 399) and must be
taken to be acting in good faith for the benefit of the common good. See,
also Union Of India v. Tulsam Patel, (1985) 3 scc 398, pp. 478-9 or AIR 1985 SC
664
1416, as well as Rash Lal Yadav (Dr) v. State Of Bihar, JT 1994 (4) SC 228, p.
241, which are cited approvingly by Justice G.P. Singh in his treatise entitled
“PRINCIPLES OF STATUTORY INTERPRETATION,” 8TH ed. (2001) at page
348, a book cited to us by Mr. Tenga.
Mr. Tenga, in support of his uncontested contention, also referred us to pages 220 -
238 of the book by M.P. Jain and S.N. Jain, “PRINCIPLES OF
ADMINISTRATIVE LAW”, 4th ed. But we have to observe here that had the
learned advocate perused page 260 of the 5th edition (2007), he would have come
across this indisputable assertion:
… Natural Justice is implied by the courts when the parent
statute under which an action is being taken by the
Administration is silent as to its application. Omission to
mention the right of hearing in the statutory provision does not
ipso facto exclude hearing to the affected person. But a
statute can exclude natural justice either expressly or
by necessary implication. The Supreme Court has observed in
this regard:
‘The Principle of natural justice does not supplant the law
but supplements the law. Its application may be excluded
either expressly or by necessary implication:" See, Dr.
Umrao S. Chaudhury v. State of M.P., (1994) 4 scc 328
at page 331, as well as State of Uttar Pradesh v. Vijay K.
Tripathi, AIR 1995 S.C 1130.
This Court was of the same view in the case of VIP Engineering & Marketing Ltd &
2 Others v. Citibank Tanzania Ltd, Civil Reference Nos. 6, 7 and 8 of 2006
(unreported). However, we quashed the decision of the trial High Court in the latter
case, on the ground of failure to observe the audi alteram partem rule, as the law
governing those proceedings did not bar at all the application of the principles of
natural justice.
Secondly, it is trite to say that unless the statute provides otherwise, the implication
of natural justice will require absence of bias: see G.P SINGH (supra) at page 351.
But this requirement may be dispensed with under what is now known as the
665
doctrine of necessity. The essence of this doctrine is that “if there is no other
person excepting A to decide the issue, the doctrine of necessity will make it
imperative on him to decide the issue inspite of any allegation of bias:” see, for
instance, Election Commission of India v. Subramantan Swamy, SC 1810, page
1817 para. 5. At page 164 of his book, de Smith (supra) makes this apt observation:
An adjudicator who is subject to disqualification at common law
may be required to sit if there is no other competent tribunal
or if a quorum cannot be formed without him. [Emphasis is
ours].
One of the commonly cited cases in vindication of this doctrine is The Judges v.
Attorney General for Saskatchewan (1937) T.L.R. 464. In that case the judges of
Saskatchewan were held to be required ex necessitate to decide on the
constitutionality of legislation rendering them liable to pay income tax on their
salaries. In our own jurisdiction, there was a time when the National Election
Commission was mandated by the law to constitute itself into a court to hear and
determine petitions challenging the validity of the Parliamentary elections it had
itself conducted and supervised. Under this head also, may be added the power of a
court to commit a person for contempt of itself.
When these two situations were drawn to the attention of Mr. Tenga, he quickly
pointed out that the facts of this case do not make it fall within the ambit of these
exceptions. He was of this view because to him, contrary to the construction put to
section 28 (2) of the Act, the law did not in any way exclude the application of the
principle of nemo judex in causa sua in revisional proceedings. By the words "the
Chairman'; he said, it was meant a Chairman of the panel sitting to determine the
revision application and not the Chairman of the I.C T. He placed much reliance
on the words "all different from those who sat on the court when it first heard
the dispute." To him, in order to avoid any absurdity, the correct interpretation to be
put on the words “all different” ought to be that none of the members of the I.C.T.
who constituted the panel in the original case should sit on revisional proceedings.
This argument is attractive and if he be correct, then the rule against bias was grossly
violated. But is Mr. Tenga correct in his construction of section 28(2)? invalidity:"
see, we understand that one of the canons of statutory construction is the
presumption against absurdity. The presumption enjoins us to construe a statute "in
666
such a manner as to give it validity rather than ODGER'S, CONSTRUCTION OF
DEEDS AND STATUTES, 5th ed, at page 263. Here, we are facing a case of two
competing alternative constructions. In such a situation, it was held in the case of
Fry v. I.R.C. [1959] Ch. 86 at pg. 105 that:
…The court, then, when faced with two possible constructions of
legislative language, is entitled to look at the results of adopting
each of the alternatives respectively in its quest for the true
intention of Parliament.
We are in full agreement with the above rule as we fully subscribe to the holding of
Lord Esher, M.R. in R.v. Judge of City of London Court [1892], Q.B. 273 at pg.290.
He held:
If the words of an Act are clear; you must follow them even
though they lead to a manifest absurdity. The Court has nothing
to do with the question whether the legislature has committed
an absurdity. [Emphasis is ours].
We take it as appreciated by all that the function of courts, under our Constitution,
is to expound the law and not to legislate. In expounding the law, we rely upon the
actual intention of the legislature. Lord Radcliffe had this to say in Attorney-General
for Canada v. Hallet & Carey Ltd. [1952] A.C. 427 at p. 449:
There are many so-called rules of construction that courts of law
have resorted to in their interpretation of statues but the
paramount rule remains that every statute is to be
expounded according to its manifest and expressed
intention.” [Emphasis is ours].
It was again said by Lord Reid in Westminster Bank Ltd v. Zang [1966] A.C. 181 at
P.222, that:
But no principle of interpretation of statutes is more firmly
settled than the rule that the court must deduce the intention of
Parliament from the words used in the Act. If those words are
in any way ambiguous – if they are reasonably capable of more
than one meaning or, if the provision in question is contradicted
by or is incompatible with any other provision in the Act then
667
the court may depart from the natural meaning of the words
in question; but beyond that we cannot go.
We fully subscribe to these holdings and adopt them because they are in accord with
our fair senses for justice and our Constitutional mandate which is based on our
recognition of the doctrine of separation of powers. The aforesaid doctrine is, of
course, subject to the clear provisions of the Constitution guaranteeing the full
enjoyment of the Basic Human rights by all.
With the above in mind, we have carefully studied the entire Act. We have found
out that the word “Chairman” has been consistently used therein to refer to the
Chairman of the I.C.T. This then, leads us to one of the established rules of statutory
construction. This rule was stated with much precision in the case of Farrel v.
Alexander [1976] 2 ALL ER 721, P. 736 (HL) thus:
... where the draftsman uses the same word or phrase in similar
contexts, he must be presumed to intend it in each place the
same meaning.
We have dispassionately applied our minds to the language used in section 28 (2) of
the Act. We have found it to be clear, plain and unambiguous. It is clear that
Parliament expressly intended the Chairman of the I.C.T. always to be a member of
the panel sitting in all revision proceedings, regardless of whether the impugned
decision and award were delivered by him or her. The use of the definite article "the"
was not accidental but was intentional. This article is particularly used to refer to
somebody or something that has already been mentioned or is easily understood or
is the only, normal or obvious one of that kind. Parliament in all its wisdom, would
not have used it out of sheer negligence and/or ignorance of its proper use.
We have found the use of the word "the Chairman" in section 28(2) of the Act, not
incompatible with any other provision in the Act. For this reason, it is our firm
opinion that the words, “all different from the ones who sat on the court when it first
heard the matter,” coming later in the provision, do not refer to the earlier
specifically singled out Chairman of the I.C.T. In order to give full effect to the clear
intention of Parliament, and therefore avoid amending the law, unjustifiably, we
have found ourselves in full agreement with the learned appellate judges of the High
Court who held that in the exercise of its revisional powers, the I.C.T. was to be
668
constituted by its Chairman, sitting with two Deputy Chairmen and two assessors. It
was these latter four persons who were barred, if any one of them had sat in the
proceedings giving rise to the revision application. We are also in agreement with
the first appellate judges on their observation that this situation was “unwholesome”,
but as we think we have sufficiently demonstrated above, it was not unusual or
strange in our jurisprudence and/or in the jurisprudence of other countries. The law
permits that.
In our perusal of the record of appeal, we have found incorporated therein a copy of
the ruling of the I.C.T. in Revision Nos. 4A and 48 of 2005 between the Agha Khan
Hospital and Ramadhani Bakari and 106 Others. This ruling is found between pages
126 and 141 of the record of appeal. It is stated in the ruling, at page 138, that the
Chairman of the I.C.T. had previously taken steps to remedy this anomaly by
advising the appropriate authorities to amend the law so as to bar the Chairman from
sitting in revisional proceedings emanating from a matter he had heard and
determined in the court's exercise of its original jurisdiction. It is stated in that ruling
that the proposal was roundly rejected by the appropriate authorities. We have taken
judicial notice of this ruling. The observations of the I.C.T. in that ruling, which
dismissed a challenge on the competence the Chairman sitting in revision of a matter
he had previously determined, confirm our finding that the initiators of the
legislation and Parliament had clearly intended the Chairman of the I.C.T. to sit in
revision proceedings in any event.
That being the case, the I.C.T. would not have been properly constituted under
section 28 (2) of the Act if the Chairman were to be excluded. Professor Sir William
Wade & C. Forsyth in their book entitled “ADMINISTRATIVE LAW” 7th ed, at
pages 476 - 7 lucidly state that:
But there are many cases where no substitution is possible, since
no one else is empowered to act Natural justice then has to give
way to necessity for otherwise there is no means of deciding and
the machinery of justice or administration will break.
We agree. In the case before us there was no room for substituting the Chairman of
the I.C.T. Natural justice, therefore, was displaced not only by the doctrine of
necessity but also expressly by clear statutory provisions, that is, by Parliament. We
accordingly find no merit in the first ground of appeal and it is hereby dismissed, its
669
duty and/or jurisdiction in refusing to determine conclusively grounds of appeal (a),
(b) and (c). Up to this point in time they remain undetermined. We would not wish
to speculate on what would have been the decision of the High Court on these three
grounds. As a result, we cannot purport to render our decision on what was not
decided by the High Court. What is in our power is to order the High Court to hear
and give a conclusive reasoned decision on the three grounds of appeal and make
consequential orders, which incidentally were not asked here. We accordingly allow
the second ground of appeal. We quash and set aside that part of the High Court
judgment which held that the court was not seized with jurisdiction to decide issues
of facts and/or mixed facts and law. For this reason, we remit the record of the High
Court to it with directions to determine conclusively grounds of appeal (a), (b) and
(c) which it declined to determine. The totally newly constituted High Court and the
parties may agree to start afresh or proceed on the basis of the submissions already
on record.
In final, this appeal partly succeeds and partly fails for reasons given herein. We
order each party to bear its/his own costs on the appeal.
TEREVAEL M. NGALAMI v. KAMPUNI YA SIMU (T) TTCL

AT DAR ES SALAAM
(Appeal from the judgment of the High Court of Tanzania, (Labour Division) at
Dar es Salaam, Aboud, Wambura and Mipawa. JJ., dated 30th October, 2015 in
670
Termination of employment – operational requirements – appellant terminated by
the respondent as the latter was undergoing structural reorganization – whether the
appellant was lawfully terminated.
The appellant was an employee of the respondent as a Principal Accountant. He
served in different capacities until the termination of his employment on reason of
restructuring. The appellant challenged the termination for being unlawful through
a letter he wrote to a Labour Officer which eventually reached the Labour
Commissioner. The Labour Commissioner referred the dispute on the appellant's
termination to the defunct ICT for inquiry and decision. The ICT sustained the
appellant's complaint being satisfied that the termination was unlawful. The decision
aggrieved the respondent and hence the application for revision before the full bench
of the Labour Court. The Labour Court sustained the revision having been satisfied
that the respondent had valid reasons to terminate the appellant in compliance with
a fair process in that regard, hence, this appeal.
Held: The termination of the contract is considered lawful due to operational
requirements, if there is evidence that a number of managers became redundant and
hence the need to terminate their contracts. The termination of the appellant's
contract was lawful due to operational requirements.
Appeal dismissed
Cases referred to
(1) Joseph M. Mutashobya v. M/S Kibo Match Group Limited [2004] T.L.R 242;
and
(2) Twikasyege Mwaigombe v. Mbeya Regional Trading Co. Limited [1988]
T.L.R
(3) Joseph M. Mutashobya v. M/S Kibo Match Group Limited [2004] T.L.R 242;
(4) Twikasyege Mwaigombe v. Mbeya Regional Trading Co. Limited [1988]
T.L.R 239

(1) Rule 106 (1) and (8) of the Tanzania Court of Appeal Rules, 2009.
671
(2) Section 8(a) of the Industrial Court of Tanzania Act [Cap. 60 R.E 2019]
Mr. Nzowa, for Appellent

Mses. Mdendemi, Mcharo and Machage, State Attorneys, for Respondent

MWANDAMBO, J.A.: Terevael M. Ngalami, the appellant, was aggrieved by the

decision of the High Court (Labour Division), henceforth the Labour Court,
quashing the decision of the defunct Industrial Court of Tanzania (the ICT) at the
instance of the respondent in Revision No. 3 of 2011. The ICT had determined a
labour dispute based on the validity of termination of employment contract referred
to it by the Commissioner for Labour against the respondent holding that the
appellant was terminated unlawfully. The instant appeal is against the decision of
the Labour Court quashing the decision of the ICT.
The tale behind the instant appeal is not complex. It goes thus. The appellant was
an employee of the respondent from the year 1997 starting with the post of Principal
Accountant, Grade I. He served in different capacities until the termination of his
employment on 16/12/2005. It is common ground that by reason of its restructuring,
the respondent went through different stages of reorganization which saw several
changes in its organization structure which had a bearing on the posts held by the
employees, the appellant included.
The respondent's privatization in the year 2001, saw the appellant who was holding
the post of Principal Financial Accountant being appointed on 18/04/2002, in the
post of Treasury Manager for two years subject to satisfactory performance reviews.
However, the appellant could not serve in that capacity beyond 15/05/2003, due to
yet another change in the organization structure removing that post in the
respondent's structure. By a letter dated 19th June, 2003, the respondent informed the
672
appellant that in view of the abolition of the post he held in the structure, he was
reverted to his former scheme of service. Through the same letter, the appellant was
transferred to a newly established Credit Management Task Force (CMTF) on
temporary basis to assume the role of Project Manager Special Projects for an initial
period of four months.
A lot of water passed under the bridge culminating into the termination of the
appellant's employment contract vide letter dated 16/12/2005. The termination was
preceded by an internal memorandum four days earlier informing the appellant of
the impending termination and the specifics of terms thereof to be in line with the
voluntary agreement and understanding said to have been reached for managers.
Two months earlier, the appellant had volunteered to be retrenched along with other
employees but the respondent rejected his request on the ground that the voluntary
retrenchment agreement did not include employees in the management of the
employer.
Not amused, the appellant challenged the termination for being unlawful through a
letter he wrote to a Labour Officer which eventually reached the Labour
Commissioner. Acting under the provisions of section 8(a) of the Industrial Court of
Tanzania Act [Cap. 60 R.E 2002], the Labour Commissioner referred the dispute on
the appellant's termination to the defunct ICT for inquiry and decision on three
specific issues; amongst others, whether the appellant's contract was terminated
before the expiry of two years. That Court (William, Deputy Chairperson) sustained
the appellant's complaint being satisfied that the termination was unlawful vide her
decision handed down on 31st December, 2007. In the end, it ordered the respondent
to reinstate the appellant in the form of employment benefits running from
16/12/2005 to the date of the decision.
That decision aggrieved the respondent and hence the application for revision before
the full bench of the Labour Court pursuant to the provisions of section 28 (1) Cap.
60 as amended by the Written Laws (Miscellaneous Amendments) Act, No. 11 of
2010 together with the Industrial Court (Revision) Rules, GN. No. 268 of 1992. The
respondent faulted the Industrial Court's decision on four grounds. Specifically, the
ICT's decision was faulted for holding that the termination of the appellant was
unlawful and that the procedure for the termination was flawed despite the evidence
to the contrary.
673
The Labour Court sustained the revision having been satisfied that the
respondent had valid reasons to terminate the appellant in compliance with a fair
process in that regard. Dismissing the submissions of the appellant's counsel, the
said court stated:
In the event we found the submission of the learned counsel
for the respondent employee devoid of merit and mere kicks
of a dying house in articulo mortis (at the point of death) we
believe that the respondent was fairly terminated and a fair
process to retrench and terminate was followed by the
employer respectively as we devoted to explain supra. [At
page 64 of the record of appeal].
Initially, the appellant had sought to challenge the impugned decision on four
grounds. However, at the hearing of the appeal, Mr. Evans Nzowa, learned advocate
who represented him sought and was granted leave to abandon ground four in the
memorandum of appeal thereby remaining with three grounds. In the remaining
grounds of appeal, the appellant faults the Labour Court contending as he does that
its decision was erroneous on three aspects as a result of which it quashed the
decision of the ICT namely: - one, failure to hold that the termination was unfair;
two, holding that the termination was procedurally fair; and, three, taking into
consideration and according weight to the appellant's letter for voluntarily
retrenchment as justification for the impugned termination.
Earlier on, the learned counsel for the parties filed their respective written
submissions for and against the appeal pursuant to rule 106 (1) and (8) of the
Tanzania Court of Appeal Rules, 2009 (the Rules). During the hearing, each made
oral address before us highlighting on some aspects in the grounds of appeal except
ground four which was marked abandoned at the instance of the learned advocate
who appeared to represent the appellant at the hearing of the appeal, as earlier shown.
The determination of this ground compels us to go back to the appellant's complaint
before the Labour Officer which culminated into the Labour Commissioner's letter,
Ref. No. KZ/U.10/MG/1914/6 dated 10/10/2006 appearing at pages 369 and 370 of
the record of appeal. It is through that letter from which one can easily identify the
cause of action and the issues referred by the Labour Commissioner for inquiry and
decision by the ICT. It is plain from that letter that, the appellant had a two years
674
contract in the post of Treasury Manager running from 18/04/2002 through
17/04/2004. The basis of his complaint was the respondent's alleged unlawful
termination of his contract before its expiry by reason of change in the organization
structure. The respondent's response was that the appellant was terminated along
with other managers whose posts had been abolished as a result of the restructuring
which entailed change in its organization structure.
From the above, the Labour Commissioner formed an opinion that there was indeed
a labour dispute fit to be dealt with by the ICT. Acting under section 8(a) of Cap.60,
the Labour Commissioner referred the dispute to the ICT for inquiry on three specific
aspects to wit; one, whether the appellant was terminated before the expiry of two
years; two, whether he was in the management of the employer; three, whether the
respondent's decision to terminate the appellant was proper. In addition, the Labour
Commissioner asked the defunct ICT to inquire into any other matters which may
arise and found to be necessary to ensure that justice is done to the parties.
It is obvious to us that the second issue appears to have arisen from the appellant's
complaint that his request for voluntary retrenchment along with other employees
was rejected by the respondent. The ICT found no difficult answering that issue
affirmatively upon being satisfied that the appellant was in the management of the
respondent who could not have been covered by the Voluntary Agreement on whose
basis he had asked the respondent to be voluntarily retrenched along with other
employees. It follows thus that the complaint against the respondent's refusal to
include the appellant in the list of the employees covered by the Voluntary
Agreement did not arise for determination by the ICT.
With regard to the first issue, the learned Deputy Chairperson reasoned that the
appellant served only four months in the post of Treasury Manager, subject of the
contract which was to expire on 17/04/2004. With some process of reasoning largely
not supported by evidence, she concluded that the appellant was terminated as a
result of spite and hatred. However, she does not appear to have directed her mind
to the real question; whether the contract of employment was terminated before the
expiry of two years.
The Labour Court was satisfied that the appellant's termination was a result of
operational requirements caused by “technological and structural change or needs”
(at page 199 of the record of appeal). It did not share the same view with the learned
675
Deputy Chairperson who had concluded that the termination was punitive against
the appellant as a result of spite and hatred. This would appear to explain the Labour
Court’s retort that the learned Deputy Chairperson glued her mind on the aspect that
the respondent (now appellant) was left without any work to do and thus holding
that termination unfair instead of considering the real reason for termination. The
nagging question which we shall turn our attention to shortly is whether the Labour
Court's decision had regard to the context of the issue the Labour Commissioner
referred to the ICT for inquiry and decision.
As seen above, the Labour Commissioner formed an opinion that the dispute centred
on the termination of the appellant before the expiry of two years in accordance with
the letter of appointment dated 18/04/2002. According to para 3 of the said letter,
the terms and conditions of service applicable to the appellant in the post of Chief
Financial Accountant a post he held immediately before the appointment to Treasury
Manager remained intact despite the abolition of that position. The terms and
conditions in the former post were contained in a letter; PF 23767 dated 30/02/1999
(at page 378 of the record of appeal). It is noteworthy that none of the letters of
appointments from the appellant's initial post to that of Treasury Manager revoked
the principal terms and conditions in his first letter of appointment to the post of
Principal Accountant Grade I in October 1997. One of the principal terms and
conditions was continued employment into permanent establishment.
What emerges from the foregoing is that, whereas the appellant's appointment in the
post of Treasury Manager did not continue to the expiry period of two years, his
employment contract remained intact. That explains why the appellant has never
complained of not being paid his monthly salaries during the whole period he
remained redundant. Unfortunately, this aspect eluded the mind of the ICT resulting
into the decision it reached holding that the appellant's contract was terminated
before the expiry of two years. In our view, that was an obvious misconception
because the letter appointing the appellant to the post of Treasury Manager was not
itself a contract of employment. It did not supersede the appellant's principal terms
of employment. Indeed, cognisant of that fact, the letter appointing the appellant to
the post of project manager task force, CMTF dated 19/06/2003, informed the
appellant that the post he had held was removed in the organisation structure with
the effect that he reverted to the former scheme of service. By any stretch of
imagination, it is hard to read termination of the appellant's contract of employment
676
from that letter. At any rate, the appellant was terminated on 16/12/2005 long after
the expiry of the two years in the post of Treasury Manager. In our view, the
appointment letter to that post was not the same as a contract of employment.
Otherwise, had it been so, the appellant had no contract capable of being terminated
after its expiry.
On the other hand, the ICT appears to have mixed the period the appellant served in
the post of Treasury Manager and Project Manager, CMTF which influenced its
decision thereby concluding that the appellant was one of the employees who was
subjected to spite and humiliation in the hands of the respondent. The record shows
that the appellant served as Treasury Manager till 21/05/2003 before he was
temporarily transferred to CMTF as project manager for four months as evidenced
by an internal memorandum appearing at page 395 of the record of appeal.
Apparently, like the ICT, the Labour Court glossed over the key issue before the
learned Deputy Chairperson regardless of the fact that it correctly held that the
appellant's termination was due to valid reason; operational requirements. Without
any disrespect to the Labour Court, we think that had it directed its mind to the issue,
it could not have failed to fault the learned Deputy Chairperson for avoiding to
address the issue raised by the Labour Commissioner which required the defunct
ICT to inquire into the dispute and determine whether the appellant's contract of
employment was terminated before the expiry of two years. Logic and common
sense would dictate that the reason for termination would have arisen only after
determining the fundamental question as directed by the Labour Commissioner.
In our view, since the appellant's employment contract as opposed to appointment
to the post of Treasury Manager was terminated after two years of his appointment
in that post, any discussion on the reason thereof was superfluous. Be it as it may,
we are constrained to agree with the finding of the Labour Court that the termination
of the appellant's contract was lawful due to operational requirements. Indeed,
evidence is abundant that by reason of operational requirements, a number of
managers, the appellant included became redundant and hence the need to terminate
their contracts. Consequently, we find no merit in ground one and dismiss it.
Next for our consideration is whether the termination of the appellant's contract was
procedurally fair, the subject of ground two in the memorandum of appeal. Having
dismissed ground one, a discussion on this ground would be superfluous. However,
677
we find it necessary to discuss it. The Labour Court did not specifically address the
issue presumably by reason of its conclusion that the termination was valid. Mr.
Nzowa argued that the respondent flouted the procedure in terminating the appellant
in as much as it did not give him the right to be heard. According to him, the
respondent should have complied with the provisions of section 58 of the
Employment Act (now repealed) by seeking consent from the Labour Officer or an
agreement with consent of the administrative officer or Labour Officer. The
respondent's submission on this ground was predicated on the appellant's contract of
employment containing a clause for its termination by either party subject to three
months' notice or payment of one month's salary in lieu of such notice. To reinforce
the submission, the respondent's counsel referred to us two decided cases from this
Court and the High Court in Joseph M. Mutashobya v. M/S Kibo Match Group
Limited [2004] T.L.R 242 and Twikasyege Mwaigombe v. Mbeya Regional Trading
Co. Limited [1988] T.L.R 239, respectively, for the proposition that a contract of
employment may be terminated by invoking a termination clause. The learned
counsel discounted the application of section 58 of the repealed Employment Act
for being misplaced.
With respect, we agree that section 58 of the repealed Employment Act is wholly
irrelevant to the case at hand the more so because the appellant's contract was not
attested by the Labour Officer or an administrative officer in terms of section 50(1)
of the repealed law. Mr. Nzowa did not cite any authority supporting his argument
on the application of section 58 of the repealed Act to the appellant's contract. To
the contrary, notwithstanding Mr. Nzowa's submission, we endorse the submissions
by the learned counsel for the respondent premised on our decision in Joseph M.
Mutashobya's case (supra) that the respondent properly terminated the contract on
the basis of the termination clause by payment of one month's salary. The respondent
did so in accordance with clause 4 of the letter of employment Ref. No. DF.600
appearing at page 370 of the record of appeal. The appellant's termination was not a
result of any disciplinary grounds which would have required the respondent to give
him an opportunity to be heard as contended by Mr. Nzowa. Indeed, that argument
falls on the face of the appellant's own request for voluntary retrenchment. In the
end, we think the whole thing is more a question of semantics than substance
considering that, for all intents and purposes, despite the respondent's refusal to
accede to the request for voluntary retrenchment, the appellant achieved the same
678
thing through termination considering the respondent's internal memorandum dated
12/12/2005 which specified the terms of termination in line with the voluntary
agreement. This appears to us to give credence to Ms. Mcharo's submission that the
appellant had no cause for complaint having been paid his terminal benefits which
has never been disputed by the appellant. In the upshot, this ground is likewise
dismissed for being baseless.
Having dismissed the two grounds, any discussion on ground three will be
superfluous.
In the event, we find no merit in the appeal and dismiss it. As the appeal arises from
a labour dispute, we make no order as to costs.
Appeal dismissed
THE COPYCAT TANZANIA LIMITED v. MARIAM CHAMBA

AT DAR ES SALAAM
(LILA, MWANDAMBO, and MASHAKA, JJ.A.)
(Appeal from the Judgment and decree of the High Court of Tanzania (Labour
Division) at Dar es Salaam, Aboud, J., dated 4th September, 2020, in Labour
Evidence – witnesses from both sides were not sworn in or affirmed before their
respective testimonies were recorded before the CMA – whether proceedings were
a nullity - Rule 19 (2) (a) and 25 (1) of the Labour Institutions (Mediation and
Arbitration Guidelines), G.N No. 67 of 2007.
The respondent was employed by the appellant on 01/06/1996. The respondent rose
from the rank of junior clerical position to the position of Head of Human Resources
and Administration which post she held till her resignation from employment on
07/08/2015. She successfully lodged a labour dispute claiming constructive
679
termination before the CMA. Although her desire to be reinstated was turned down,
the CMA awarded her damages to the tune of TZS 100 Million which was
challenged by way of revision in the High Court by the appellant. The High Court
sustained the CMA award and also ordered the appellant to pay twelve (12) months'
salary as compensation for unfair termination. That decision precipitated lodgement
of this appeal.
As the Court was perusing the record of appeal, it came to its notice that witnesses
by both sides were not sworn in or affirmed before their respective testimonies were
recorded before the CMA. The Court invited the learned advocates to address it on
whether in view of the patent defect, the Court could proceed with the hearing of the
appeal on merits.
Held: Swearing in of a witness before testimony is a mandatory requirement, there
is no gainsaying that the omission vitiates the proceedings because it renders the
evidence which is not taken under oath invalid.
Proceedings nullified
Cases referred to
(1) Catholic University of Health and Allied Sciences (CUHAS) v Epiphania
Mkunde Athanase, Civil Appeal No. 257 of 2020
(2) Unilever Tea Tanzania Limited v Davis Paulo Chaula, Civil Appeal No. 290
of 2019

(1) Rule 19 (2) (a) and 25 (1) of the Labour Institutions (Mediation and
Arbitration Guidelines), G.N No. 67 of 2007.
(2) Sections 2 and 4 of the Oaths and Statutory Declarations Act [Cap. 34 R. E.
2019]
(3) Section 4(2) of Appellate Jurisdiction Act, Cap. 141 [R. E. 2019]
Mr. Mbwambo, for Appellant

680
Mr. Lackman, for Respondent

Dated 10th March, 2022
LILA, JA.: The present appeal emanated from the High Court decision in Labour
Application No. 421 of 2019 in which the appellant had sought revision of the
arbitral award by the Commission for Mediation and Arbitration (the CMA) in a
labour dispute lodged by the respondent in which she alleged that the appellant
constructively terminated her from employment. An order for reinstatement was
found unfavourable. Instead, the CMA ordered payment of TZS 100,000,000.00 as
being general damages as a solace. The High Court did not find merit in the
Revision. It, instead, sustained the arbitrator's award and also ordered the appellant
to pay the respondent twelve (12) months' salary as compensation for unfair
termination.
The High Court decision aggrieved the appellant, hence the present appeal grounded
upon a three points memorandum of appeal which grounds are not relevant for the
disposal of this appeal. Accordingly, we find it unnecessary to recite them.
We wish to start by narrating, albeit briefly, the factual setting that led to the
lodgement of this appeal. As the record will bear testimony, the respondent's career
development with the appellant was a successful one. Upon her recruitment on
01/06/1996, she rose from the rank of junior clerical position to the position of Head
of Human Resources and Administration which post she held till her resignation
from employment on 07/08/2015. What happened to her is not of immediate
relevance here. Suffice it to say that she successfully lodged a labour dispute
claiming constructive termination before the CMA. Although her desire to be
reinstated was turned down, the CMA awarded her damages to the tune of TZS 100
Million which was challenged by way of revision in the High Court by the appellant.
The High Court added salt onto a fresh wound when it sustained the CMA award
and also ordered the appellant to pay twelve (12) months' salary as compensation for
unfair termination. That decision precipitated lodgement of this appeal.
681
Before us for hearing of the appeal, the appellant was represented by Mr. Rahim
Mbwambo, learned advocate, whereas the respondent enjoyed the services of Mr.
Antipas Seraphin Lackam, also learned advocate.
As we were perusing the record of appeal, it came to our notice that witnesses by
both sides were not sworn in or affirmed before their respective testimonies were
recorded before the CMA. Alive to the imperative requirement to ensure witnesses'
testimonies are recorded under oath in terms of Rule 19 (2) (a) and 25 (1) of the
Labour Institutions (Mediation and Arbitration Guidelines), G.N No. 67 of 2007
(G.N No. 67 of 2007), we found ourselves, before the hearing of the appeal could
commence in earnest, constrained to invite the learned advocates to address us on
whether in view of the patent defect, we could proceed with the hearing of the appeal
on merits.
Both counsels were agreeable with the Court's observation that the cited provisions
were violated as a consequence of which the testimonies were of no evidential value.
They could, in that advent, not hold but urge the Court to nullify the proceedings
and award by the CMA as well as the High Court proceedings and judgment and
then order the record of the CMA to be remitted back for it to hear and determine
the dispute afresh. And, as it was a matter initiated by the Court, none of them
pressed for costs.
We feel no remorse in associating ourselves with the concurrent views by the learned
counsel that the arbitrator abdicated his duty stipulated under Rule 19 (2) (a) of G.N.
No. 67 of 2007 which empowers him to administer oath to any person who appeared
to give evidence. That Rule provides:
Rule 19
(2) The power of the arbitrator includes to-
administer an oath or accept an affirmation from any
(a)
person called to give evidence.
A concurrent obligation is placed on the parties to the dispute to prove their cases on
oath. That is in terms of Rule 25 (1) of G.N. No. 67 of 2007 which, in mandatory
terms, puts a requirement for a witness to give evidence on oath. It states:
682
The parties shall attempt to prove their respective cases
through evidence and witnesses shall testify under oath
through the following process-
(a) Examination in chief
(i) The party calling a witness who knows relevant
information about the issues in dispute obtains that
information by not asking leading questions to the person;
(ii) Parties are predicted to ask questions during an
examination in chief.
(b) Cross examination:-
(i) The other party or parties to the dispute may, after a
witness has given evidence, ask any questions to the
witnesses about issues relevant to the dispute;
(ii) Obtain additional information from witness or challenge
any aspect of the evidence given by the witness; leading
questions are allowed at this stage of proceedings.
(c) Re-examination the party that initially called the witness
has further opportunity to ask questions to the witness relating
to issues dealt with during cross examination and the purpose
of re-examination. (Emphasis added)
Contrary to the above exposition of the law, the record shows vividly that witnesses
for both sides testified before the CMA without being sworn. For the appellant, both
Mr. Denis Nyongesa, Head of Human Resources and Mr. Michael Anthony Godfrey,
Chief Executive Officer, gave evidence on 20/05/2016, respectively. It is indicated
that they were christians but were not sworn before their evidence was taken.
Similarly, Mariam Chamba, the sole witness for the respondent, testified on
31/05/2016 but was not affirmed after her religion was indicated as being a muslim.
There is no gainsaying that their evidence was not recorded in conformity with the
guidelines governing recording of evidence.
In the Court's recent decisions in Catholic University of Health and Allied Sciences
(CUHAS) v Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020 and
Unilever Tea Tanzania Limited v Davis Paulo Chaula, Civil Appeal No. 290 of 2019
(both unreported), this Court grappled with identical situations and pronounced itself
683
that such a violation renders the evidence invalid and therefore vitiates the
proceedings. For instance, in the latter case it was categorically stated that:
Since therefore, swearing in of a witness before he testifies is
a mandatory requirement, there is no gainsaying that the
omission vitiates the proceedings because it renders the
evidence which is not taken under oath, invalid…
This position becomes sounder as it accords with the provisions of sections 2 and 4
of the Oaths and Statutory Declarations Act [Cap. 34 R. E. 2019] which, read
together, imperatively oblige witnesses in judicial proceedings to give evidence
upon oath or affirmation.
In the circumstances, we accept the invitation by the learned counsel to invoke the
revisional powers this Court is clothed with in terms of section 4(2) of Appellate
Jurisdiction Act, Cap. 141 (R. E. 2019), as we hereby do, to nullify the proceedings
and the award by the CMA as well as the proceedings and judgment of the High
Court as they emanated from a nullity. We further order that the record of the CMA
be remitted back for it to hear and determine the dispute afresh and in compliance
with the law. For the interest of justice, we direct the dispute be presided over by
another arbitrator. We make no order for costs.
Proceedings nullified
TUICO. (On behalf of its members) v. THE CHAIRMAN

INDUSTRIAL COURT OF TANZANIA & ANOTHER
AT DAR ES SALAAM
CIVIL APPLICATION NO. 517 /18 OF 2017
(Application for extension of time within which to lodge an Application for stay of
execution from the decision of the High Court of Tanzania, Labour Division, at Dar
es Salaam, Hon. Mashaka, J., dated 30th June, 2015 in Revision No. 154 of 2014)
684
Preliminary objection – jurisdiction of the court – respondents raise objection
relating to jurisdictional matters that the Court lacks jurisdiction to entertain the
application for extension of time view of the provisions of the law which renders it
time barred – Whether the preliminary objection raises a point of law
Application for extension of time to re-hear and determine on merit and the
satisfaction of the parties in the failed previous application for review - whether the
Court can review its own decision.
In this application the applicants are seeking relief for the Court to enlarge time for
the applicants to re-hear and determine on merit and the satisfaction of the parties
and in the interest of justice, the failed application for review in Civil Application
No. 114 of 2011. The affidavit in support of the notice of motion, expounds
background facts leading to the current application.
Held: i) The powers to review for this Court are enshrined under section 4(4) of the
Appellate Jurisdiction Act, [Cap 141 R.E. 2002] (as amended) which states: “The
Court of Appeal shall have the power to review its own decision”.
ii) It is now trite law that a preliminary objection should be based on a pure point of
law, not on points whose facts need to be ascertained by way of evidence.
Cases referred to
(1) Yusuf Vuai Zyuma v. Mkuu was Jeshi la Ulinzi TPDF and 2 Others Civil
(2) Kenya Airways vs Nyanda Mgwesa Nyanda, Civil Appeal No. 23 of 2012,
(3) Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969)
E.A 696.

(1) Section 4(4) of the Appellate Jurisdiction Act, [Cap 141 R.E. 2019];
(2) Rule 10 of the Tanzania Court of Appeal Rules 2009:
685
(3) Rule 66 (1) of the Tanzania Court of Appeal Rules 2009.
.
Mr. Ukwong’a, for Applicants
Mr. Mrisha, Senior State Attorney, for Respondent
RULING OF THE COURT

KOROSSO, J.A.: This application is made by way of notice of motion under Rule
10 of the Tanzania Court of Appeal Rules, 2009 (“the Rules”), as amended by
Government Notice No. 362 of 2017. The notice of motion filed under a certificate
of urgency, is supported by an affidavit sworn by Godfrey Ukwong'a, learned
advocate for the applicants and annexed with copies of various supporting
documents including a list of 502 names of which the applicant is acting as a
representative.
The applicants sought relief for the Court to enlarge time for the applicant to re-hear
and determine on merit and the satisfaction of the parties and in the interest of justice,
the failed application for review in Civil Application No. 114 of 2011. The said
affidavit in support of the notice of motion, expounds background facts leading to
the current application.
Through oral and written submissions expounded by the applicants’ counsel and
before this Court, the application is grounded on various factors as submitted. First,
that the proceedings and composition of the Justices who heard and determined Civil
Application No. 114 of 2011 are tainted with illegality. Specifically, on the fact that
one of the Justices gave a dissenting judgment in Civil Appeal No. 67 of 2010 and
thus the counsel argued, it was not judicious for the dissenting justice to sit and
determine the decision of the majority justices of the Court.
686
The second ground is that, the way and the manner in which Civil Application No.
114 of 2011 was handled and led to there being two Rulings; created a crack in the
procedure of handling reviews in this Court and the lower court. Therefore, giving
rise to a need for the Courts directions so as to meet the ends of justice. Third, that
there is a need for having provisions to cover the position on the role of Justices who
dissent, where there is a review of appeals, and other related matters where review
is an issue. With regard to the delay to file the application in time, the applicant
submitted two grounds. First that the learned counsel for the applicant came across
the need to proceed with a reference, after being consulted to assist/provide
guidance, when many years had elapsed already. Second, that the fact that there are
legal issues raised by the dissenting judge in the Review order, has legal force to
compel the Court to enlarge time even when the time has long elapsed.
On the part of the Respondents, they filed an affidavit in Reply and a notice of
preliminary objection on the 22nd of March 2018. The said objection was that the
Application is res judicata, and thus the applicant should be estopped from pursuing
it. On the 18th of October, 2018, the Respondents filed an additional notice of
preliminary objection to the effect that:
The Honorable Court lacks Jurisdiction to entertain the
application in view of the provisions of paragraphs 13(9) of
the 3rd Schedule to the Employment and Labour Relations Act
2004 as amended by the Written Laws (Miscellaneous
Amendment) (No.2) Act No. 11 of 2010 read together with
Employment and Labour Relations (Extension of Time for
Dispute Determination) Notice 201Br GN No. 149 of 2013.
On the date fixed for hearing, the applicants were represented by Mr. Ukwong'a
Learned Advocate and the 1st and 2nd respondents were represented by Mr. Abubakar
Mirisha, Learned Senior State Attorney.
The Court invited parties to submit in relation to the preliminary objections
raised by the respondents. The learned counsel for the respondents prayed to
withdraw the notice of the first preliminary objection they had raised, that alleged
that the application was res judicata. Upon consideration of the prayers and the
submissions from the learned counsel for the applicants, who registered no objection
687
to the prayer for withdrawal, the Court acceded to the prayer for withdraw and
consequently, the 1st preliminary objection was marked withdrawn.
The applicant and respondent counsels, with the leave of the Court, then proceeded
to submit on the 2nd preliminary objection raised only. This objection was that this
Court, lacks jurisdiction to entertain the application in view of the provisions of
paragraphs 13(9) of the 3rd Schedule to the Employment and Labour Relations Act,
2004 as amended by the Written Laws (Miscellaneous Amendment) (No.2) Act, No.
11 of 2010 read together with Employment and Labour Relations (Extension of Time
for Dispute Determination) Notice 2018, GN No. 149 of 2013.
The Respondents contended that the preliminary objection raised and filed on the
26/10/2017 was a pure point of law, in line with the principles established in Mukisa
Biscuits case. That having regard to the fact that the present application was filed on
the 26/10/2017, and that the time of filing of the notice of motion was outside the
prescribed time provided by the Law and arguing that the ELRA (Extension of time
for Disputes Determination) Notice 2013 provides under section 2 that the period
for disputes under ELRA is extended for 3 years up to the 28th of May 2013. The
respondents argued further that the date the application was filed is outside the
parameters of the stated provision and therefore it is time barred for about one year
and five months. Therefore, they argued that the application is incompetent since it
was filed in a Court which lacks jurisdiction to entertain the application.
The argument by the respondents being that, the Written laws Misc. Amendment
Act, No. 2 of 2010, in part XVII, section 42, which is an amendment of paragraph
13 in the 3rd Schedule of ELRA specifies the time to challenge being three years and
paragraph 13(9) specifies that the period of 3 years is what shall apply. After the
extension given, that there is no other extension which was provided and thus
according to the respondents, meaning that the current application for review is time
barred. To cement this position the case of Yusuf Vuai Zyuma v. Mkuu was Jeshi la
Ulinzi TPDF and 2 Others Civil Appeal No. 15 of 2009, the Court of Appeal sitting
in Zanzibar refers where at pg. 6, it stated that, they agreed with the learned State
Attorney that the appellant did not institute the suit within time was therefore time
barred. That in this case, the suit was instituted beyond the time allowed rendering
the suit time barred.
688
The respondents also cited another case, that is, Kenya Airways vs Nyanda Mgwesa
Nyanda, Civil Appeal No. 23 of 2012, (unreported) a High Court decision, where at
pg. 7, it was stated that the importance of the Law of Limitation has been religiously
applied and binds the said Court. The decision having emphasized on the importance
of the Law of Limitation and how it binds the High Court. The learned counsel
concluded by stating that the current application was filed more than one year and
half after the expiry of time, and there is no extension which has been sought from
the responsible Minister, and thus prayed the Court dismiss the application with
costs.
On the part of the applicants, their counsel argued that what is before the Court is an
application for extension of time, which is only barred on there being no good cause
shown. Therefore, any matters related to the application being barred by operation
of the laws relating to employment and amendments of ELRA are not applicable at
this juncture. That the position is clear, that the dispute between the applicant and
the respondent is locked up in the former Industrial Court. That what transpired after
the sittings in the Industrial Court, are issues which arose in Court when dealing with
the dispute. The counsel argued further that what is before this Court is not the
dispute, locked up with the former Industrial Court, but the application for extension
of time to review so as to challenge the procedure used, which if successful will trace
its way back to the Industrial Court so that the dispute locked in the Industrial Court
can find its way on which direction to go.
The applicants counsel submitted that while they partially concede to the preliminary
objection raised by the respondents, it is only so far as the dispute is concerned, that
is the matter to be referred to Center for Mediation and Arbitration, under the
relevant provisions. That the amendments in the ELRA will not bar the applicants'
proceedings to CMA. That the current application before the Court is not time
barred, and before the Court is not a labour dispute.
The learned State Attorney rejoinder was to reiterate their stance, arguing that the
application falls within the amended laws already stated. That the preliminary
objection raised is grounded on the jurisdiction of this Court, and as long as the
application is for extension of time to rehear, it falls under the amendments already
submitted and it is therefore time barred.
689
There is no doubt that what is before the Court is an application for extension of
time, to rehear and determine on merit and the satisfaction of the parties, the failed
application for review, that is, Civil Application No. 114 of 2011, which was
determined by this Court.
In the said application, upon consideration of the grounds for the application and
submissions before the Court. The Court found there was no error apparent on the
face of the record to warrant the review order sought and thus found no merit in the
application and proceeded to dismiss the application for review with costs.
The Section cited to move the Court to consider the application is Rule 10 of the
Tanzania Court of Appeal Rules 2009 (as amended) which states:
The Court may, upon good cause shown, extend the time
limited by these Rules or by any decision of the High Court
or tribunal, for the doing of any act authorized or required by
these Rules, whether before or after the expiration of that time
and whether before or after the doing of the act; and any
reference in these Rules to any such time shall be construed
as a reference to that time as so extended.
Although the relevant provisions were not cited by the parties, the powers to review
for this Court are enshrined under section 4(4) of the Appellate Jurisdiction Act,
[Cap 141 R.E. 2002] (as amended) which states: “The Court of Appeal shall have
the power to review its own decision”. At the same time Rule 66 (1) of the Tanzania
Court of Appeal Rules 2009 (as amended) provides for review by the Court of its
own decisions upon conditions stated in Subrules (a) to (e) of Rule 66(1).
The respondents counsel has challenged the competence of this application.
The challenge is grounded on the argument that this Court, has no jurisdiction to
entertain the application for reasons already presented hereinabove as expounded by
the counsel for the respondents. While the applicant's counsel has challenged this
assertion finding it misconceived, by virtue of the fact that this is an application
seeking extension of time and arguing that the issue under consideration should be
whether good cause has been shown to warrant grant of the prayers sought by the
applicant.
690
With regard to the raised preliminary objection by the respondents, which is
under consideration, the applicant counsel registered no challenge on the
competence of the preliminary objection raised. It is pertinent to remind ourselves
that, it is now trite law that a preliminary objection should be based on a pure point
of law, not on points whose facts need to be ascertained by way of evidence as
expounded in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd
(1969) E.A 696.
Considering the fact that the respondents’ objection relates to jurisdictional
matters, that is, arguing that this Court lacks jurisdiction to entertain the application
in view of the provisions of paragraphs 13(9) of the 3rd Schedule to the Employment
and Labour Relations Act, 2004 as amended by the Written Laws (Miscellaneous
Amendment) (No.2) Act, No. 11 of 2010 read together with Employment and
Labour Relations (Extension of Time for Dispute Determination) Notice 2018, GN
No. 149 of 2013. Thus, there is no doubt that the preliminary objection raised is a
point of law.
The applicant counsel in his submissions partially conceded to the preliminary
objection raised by the respondents, but stated it is only true so far as the dispute is
concerned, and thus stating that it did not relate to the application before the Court.
Having considered the matter before the Court, and also all the decisions cited
by the applicants and respondents related to what a Court should consider where
there is an application for extension of time, such as the present application.
I have carefully considered the submissions from the counsels for the applicants and
the respondents on this point, I am inclined to share the views expressed by the
applicant’s counsel that, the matter related to whether or not this Court has
jurisdiction for reasons expounded by the respondents counsel will be relevant for
consideration and determination when the matter is considered in an application for
review and not at this juncture. Understanding that, under Rule 66(1) (d) of the
Tanzania Court of Appeal Rules, the issue on whether or not the Court has
jurisdiction to entertain the case is a ground which can lead the Court to hear and
determine an application for review.
That being the case, I find that the preliminary objection raised is premature and not
applicable for due consideration in this application, it is a matter which may be
691
considered when addressing the merits of the said application. Therefore, I find the
preliminary objection raised by the respondents devoid of merit and is therefore
overruled.
In the circumstances, the application to proceed on merit, with hearing and
determination of the issues before the Court. Costs be in the cause.
TUMAINI MASSARO v. TANZANIA PORTS AUTHORITY

AT DAR ES SALAAM
(MWARIJA, SEHEL, and FIKIRINI, JJ.A.)
(Appeal from the decision of the High Court of Tanzania (Labour Division) at Dar
es Salaam, Nyerere, J., dated 14th July, 2017 in Revision No. 177 of 2016)
Reliefs – Order of compensation – arbitrator finds that the termination was
substantively and procedurally unfair and awards 36 months compensation - High
Court finds that termination was fair in both aspects but appreciated that the
arbitrator has power to award compensation above 12 months compensation –
Whether the High Court acted fairly to quash the CMA award
Judgment – counsel culls out some few paragraphs and sentences from the judgment
and reads them out of the context of the entire judgment – whether counsel’s
submissions tenable.
The appellant was an employee of the respondent. He was employed as marine pilot
trainee and at the time of his termination, he was as an oil terminal manager.
Aggrieved by such termination, he lodged a complaint before the Commission for
Mediation and Arbitration. The CMA decided in favour of the appellant. The
respondent was aggrieved by that decision. It thus filed a revision in the High Court
692
of Tanzania, Labour Division. The court decided in favour of the respondent, hence,
this appeal.
Held: i) It is crystal clear that the remedies provided under section 40 (1) (a) to (c)
of the ELRA would be granted by an arbitrator or Labour Court only where it is
found that the termination of the employment of an employee was unfair. But, if in
the appeal, the termination is found to be substantially and procedurally unfair, the
order of compensation stipulated under section 40 (1) (c) of the ELRA cannot be left
to stand.
ii) It is a cardinal principle that reason in a judgment has to be read in as a whole in
the context of the issue that was before the court to have its true meaning and logic.
Appeal dismissed
Cases referred to
Qatar Airways v. Elizabeth M. Kuzilwa, Revision No. 218/2013 DSM
Serenity on the Lake Ltd v. Dorcus Martin Nyanda, Civil Appeal No. 33 of 2018

Section 40 (1) of the Employment and Labour Relations Act, [Cap R.E. 366 of 2019]
Rule 106 (1) of the Tanzania Court of Appeal Rules, 2009
Mr.Waissaka, for Appellant

Mr. Chang’a,Principal State Attorney, Ms. Yongo, and Mr. Charles, State Attorneys,
for Respondent

Dated 31st August, 2021
693
SEHEL, J.A.: The appellant, Tumaini Massaro was an employee of the respondent,
Tanzania Ports Authority (TPA). He was employed on 2nd November, 1981 as
marine pilot trainee. By the time of his termination on 11th January, 2013 he was as
an oil terminal manager.
The facts that led to his termination are such that; he was charged with three
offences, dishonesty to his employer as he lied to the management concerning by-
pass of flow meters, gross negligence because he failed to properly supervise the
contract for selling of slops and sludge oil to M/S Singilimo Enterprises whose
contract expired and gross inefficiency because he failed to properly advice his
employer on the use of by-pass of flow meters, removal and disposal of slops and
sludge oil. After the conduct of the disciplinary hearing, he was found guilty of two
offences, gross negligence and gross inefficiency. He was thus terminated on those
two grounds.
Aggrieved by such termination, he lodged a complaint before the Commission for
Mediation and Arbitration (henceforth CMA). He complained that the termination
was unfair because there was no valid reason for his termination, the procedure for
termination was not followed, the terms and conditions of his employment were not
considered and the explanation he gave was not considered by the disciplinary
committee. After hearing the parties’ evidence, the CMA’s arbitrator found that
there was no valid reason for termination of the appellant's employment and that the
procedure used by the respondent to terminate him was unfair. In that respect, the
respondent was ordered to compensate the appellant thirty-six (36) months' salaries
equivalent to TZS. 156,484,548.00. Further, the respondent was required to comply
with the CMA's award within thirty (30) days from the date of its receipt.
The respondent was aggrieved by that decision. It thus filed a revision in the High
Court of Tanzania, Labour Division at Dar es Salaam (the High Court) to assail it. It
raised five grounds. However, the High Court in its judgment condensed them into
three issues. The first issue which was canvassed was whether the respondent was
terminated on valid reason. The learned Judge found that respondent being an oil
terminal manager failed to take necessary measures to advice the management on
the temporarily use of by-pass meters. Accordingly, she reversed the decision of the
arbitrator and held that the respondent was terminated for valid reason.
694
The second issue which the learned Judge raised was whether the termination of the
respondent's employment followed a fair procedure. The learned Judge observed that
the main complaint of the respondent before the CMA was on termination letter
which was signed by one Peter Gawile, Acting Director of Human Resources. He
complained that Mr. Peter Gawile had no authority to issue such termination letter
to him. The learned Judge after scrutinizing the said letter, she found that the
decision to terminate employment services of respondent was done by the Board of
Directors of the appellant and not Mr. Peter Gawile who simply communicated the
termination to him.
The last issue was whether the compensation of 36 months' salary is justifiable under
the labour laws and practice. On this issue the learned Judge found that the arbitrator
had powers to award more than 12 months' salary and that there were peculiar
circumstances for the grant of compensation of 36 months' salary. She however,
quashed and set aside the award.
Irked by the act of quashing and set aside the award of 36 months' salary, the
appellant filed the present appeal comprising of five grounds of appeal. It transpired
that he was late in serving the respondent with the memorandum and record of
appeal. He sought leave to file the same and he also sought leave to file written
submission out of time which was granted. Therefore, pursuant to Rule 106 (1) of
the Tanzania Court of Appeal Rules, 2009 as amended (the Rules) and in compliance
with the Court order, the appellant filed his written submissions. In the submissions,
he abandoned four grounds of appeal and remained with one ground that:
The Honourable Judge erred in law in quashing the award of
thirty- six months compensation without giving reasons.
The respondent did not file any written submissions. Instead, it filed a notice of
preliminary objection raising three points of law. Nevertheless, the said notice was
withdrawn at the hearing of the appeal following a prayer made by the counsel for
the respondent.
When the appeal was called on for hearing, Mr. Kichere Mwita Waissaka, learned
advocate appeared for the appellant whereas the respondent had the services of Mr.
Hangi Chang'a, learned Principal State Attorney who was assisted by Miss Sabina
Yongo and Mr. Shija Charles, both learned State Attorneys.
695
Arguing the appeal, Mr. Waissaka first adopted the written submissions and
submitted that the learned Judge erred in quashing and setting aside the arbitrator's
award given that she had earlier on appreciated the arbitrator's power and the
reasoning in awarding compensation of 36 months' salary. In order to fully
understand this complaint, we take the liberty to reproduce that part of the judgment
of the High Court which appears from pages 396 - 397 of the record of appeal.
Suffice to point out here that the learned Judge reproduced section 40 (1) of the
Employment and Labour Relations Act, [Cap R.E. 366 of 2019] (ELRA) and quoted
the case of the High Court of Qatar Airways v. Elizabeth M. Kuzilwa, Revision No.
218/2013 DSM Registry (unreported) then she said:
It is my understanding of law and practice on this aspect that
arbitrator had power to grant any of the above-mentioned
remedies including damages unless is precluded from doing
so by grounds articulated under Rule 32 (5) of the Labour
Institutions (Mediation and Arbitration) Rules GN 67/2007. I
am also alive with section 40 (1) (c) which provide
compensation of not less than 12 months' salary. In a literal
meaning section 40 (1) (c) of the ELRA arbitrator has power
to grant more than 12 months' salary compensation but if only
the facts of the case require that. In the instant case arbitrator
awarded 36 months' salary compensation on grounds that the
respondent had worked for a long period of time and also at
the time the award was delivered, respondent was 59 years
old therefore it will be difficult for him to secure new
employment. In my view, the arbitrator reasoning hold water
as such are among the reasons this coutt grant compensation
of more than 12 months.
From the above observation, Mr. Waissaka contended that while the learned Judge
agreed with the arbitrator that the award of 36 months’ salary compensation was
legally sound because the appellant had worked with the respondent for a long time
and he was an old aged man thus it would be difficult for him to secure employment,
she refused to confirm the award. He added that there was no reason given for such
a refusal. Mr. Waissaka further submitted that such a refusal was contrary to the
696
dictates of the provision of section 40 (1) (c) of the ELRA. He therefore urged the
Court to quash the decision of the High Court and allow the appeal.
Mr. Chang’a strongly opposed the appeal by arguing that the learned Judge did give
reasons on quashing the arbitral award. To bolster his submission, he took us through
the High Court judgment found at pages 384 to 398 of the record of appeal. He
pointed out that after the learned Judge had discussed the issue as to whether the
termination of the appellant's employment was substantially and procedurally fair,
she was satisfied that there were valid reasons in terminating the appellant's
employment. He said, this is reflected at page 392 of the record of appeal. He further
pointed out that at page 395 of the record of appeal, the learned Judge found that the
arbitrator's decision was arrived wrongly since the appellant did not dispute that the
disciplinary hearing was conducted. Mr. Chang'a submitted that it was for those
reasons that led the learned Judge to conclude at page 396 of the record of appeal
that the termination was substantially and procedurally fair and proceeded to quash
the award of compensation of 36 months' salaries.
Mr. Chang'a further contended that section 40 (1) (c) of the ELRA does not apply to
the appellant whose termination was found to be fair by the High Court. To cement
his argument, he referred us to the case of Serenity on the Lake Ltd v. Dorcus Martin
Nyanda, Civil Appeal No. 33 of 2018 (unreported) where the Court held that the
respondent was not entitled to the compensation under section 40 (1) (c) of the
ELRA since the legal procedure for terminating the respondent's employment was
adhered to.
In rejoinder, Mr. Waissaka reiterated his earlier submission that the learned
Judge ought to have given a reason to set aside the arbitrator's award. He also
distinguished the facts in the case of Serenity on the Lake Ltd (supra) that the
employee therein was on probation period whereas in the present appeal the
appellant was a permanent employee who worked for a long time. He thus reiterated
his earlier prayer that the appeal be allowed.
We have carefully considered the rival submissions by the parties and keenly gone
through the judgment of the High Court found. At the very outset, we wish to state
that we entirely agree with the learned Principal State Attorney that the High Court
did give reason in its judgment in quashing and setting aside the arbitrator's award.
The said reason is found at page 398 when she said:
697
However, followed findings of this court that the
respondent termination was substantially and
procedurally fair the award of 36 months compensation is
hereby quashed and set aside.
It follows that the learned Judge quashed the arbitrator's award because she had
previously found that the termination of the appellant's employment was
substantially and procedurally fair. This rhymes well with the provisions of section
40 (1) of the ELRA which provides:
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
that the employee was absent from work due to the un fair
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 of not less than
twelve months' remuneration.
From the above provision of the law, it is crystal clear that the remedies provided
under section 40 (1) (a) to (c) of the ELRA would be granted by an arbitrator or
Labour Court only where it is found that the termination of the employment of an
employee was unfair. But in the appeal before us, the termination was found to be
substantially and procedurally unfair. In that regard, as rightly submitted by Mr.
Chang'a, the order of compensation stipulated under section 40 (1) (c) of the ELRA
could not have been left to stand. Given the findings of the learned Judge, we are
satisfied that she rightly quashed and set it aside.
It is unfortunate that Mr. Waissaka culled out some few paragraphs and sentences
from the judgment and read them out of the context of the entire judgment to drive
home his argument that there was no reason given by the learned Judge. It is a
cardinal principle that a reason in a judgment has to be read in as a whole in the
context of the issue that was before the court to have its true meaning and logic. The
698
Supreme Court of India when discussing as to how one could ascertain ‘a ratio
decidendi’ and ‘an obiter dictum’ in the case of Director of Settlements, A.P &
Others v. M. R. Apparao & Another, (2002) 4 sec 638 at
http://indiankanoon.org/doc/703650/ had this to say:
... The statements of the Court on matters other than la like
facts may have no binding force as the facts of two cases may
not be similar. But what is binding is the ratio of the decision
and not any finding of facts. It is the principle found out
upon a reading of a judgment as a whole, in the light of
the questions before the Court that forms the ratio and
not any particular word or sentence. To determine whether
a decision has ‘declared law’ it cannot be said to be a law
when a point is disposed of on concession and what is binding
is the principle underlying a decision. A judgment of the
Court has to be read in the context of questions which
arose for consideration in the case in which the judgment
was delivered. An 'obiter dictum' as distinguished from a
ratio decidendi is an observation by Court on a legal question
suggested in a case before it but not arising in such manner as
to require a decision.
We find the above to highly persuasive to the present appeal. As a result, we are of
the view that it was totally wrong for Mr. Waissaka to pick the last sentence of the
learned Judge's decision and read it in isolation from the entire paragraph. Had he
read the reasoning of the judgment holistically, he would have appreciated the course
taken by learned Judge. On a holistic reading of the reasoning of the learned Judge
we find nothing to fault her since she could not have confirmed the award of
compensation of 36 months' salary after she had previously found termination was
fair.
In the upshot, we find the present appeal lacks merit. It is therefore dismissed with
no order as to costs as it arose from a labour dispute.
Appeal dismissed
699
TANZANIA PORTLAND CEMENT CO. LTD v. EKWABI MAJIGO
AT DAR ES SALAAM
(MWARIJA, SEHEL, and FIKIRINI, JJ.A.)
(Appeal from the decision of the High Court of Tanzania (Labour Division) at Dar
es Salaam, Wambura, J., dated 17th July, 2019, in Revision No. 8 of 2018)
Evidence – propriety of the proceedings of the CMA in which the testimonies of some
of the witnesses were received without oath or affirmation - rule 25 (1) of the Labour
Institutions (Mediation and Arbitration) Rules, Government Notice No. 67 of 2007.
The respondent was employed by the appellant in the position of a sales manager.
His employment was terminated allegedly for taking a bribe and issuance of fraud
credit note to a client. Aggrieved with the termination, he filed a complaint before
the CMA alleging that he was unfairly terminated from service. The CMA found
that the termination was substantially and procedurally unfair. The appellant was not
satisfied with the award. It filed an application for revision in the High Court of
Tanzania, Labour Division. The High Court concurred with the arbitrator that
termination of employment of the respondent was substantially unfair. Still
aggrieved, the appellant filed the present appeal.
At the very outset, before the parties were allowed to submit on the grounds of
appeal, the Court invited counsel to address it on the propriety of the proceedings of
the CMA regard being had to the fact that the testimonies of some of the witnesses
were received without oath or affirmation.
Held: Every witness who is competent to take oath or affirmation before the
reception of his or her evidence in the trial court including the CMA must take oath
or affirmation otherwise the testimony of such witness amounts to no evidence in
law thus, it becomes invalid and vitiates the proceedings as it prejudices the parties'
case.
700
Proceedings quashed
Cases referred to
(1) Kabula Luhende v. The Republic, Criminal Appeal No. 281 of 2014;
(2) Hamis Chuma @ Hnado Mhoja and Another v. The Republic, Criminal
(3) Jafari s/o Ramadhani v. The Republic, Criminal Appeal No. 311 of 2017;
(4) Nestory Simchimba v. The Republic, Criminal Appeal No. 454 of 2017; and
(5) Catholic University of Health and Allied Science (CUHAS) v. Epiphania
Mkunde Athanase, Civil Appeal No. 257 of 2020.
(1) Rule 25 (1) of the Labour Institutions (Mediation and Arbitration) Rules,
Government Notice No. 67 of 2007
(2) Section 40 (3) of the Employment and Labour Relations Act, [Cap. R.E. 366
of 2019]
Messrs. Vitalis and Rweikiza, for Appellant

Mrs Paulo and Mr. Ally, for Respondent

Dated 2nd September, 2021
SEHEL, J.A.: This is an appeal against the decision of the High Court (Labour
Division) in Revision No. 8 of 2018 that affirmed the Award of the Commission for
Mediation and Arbitration (CMA) in Labour Dispute No.
CMA/DSM/KIN/R.49/15/537 (the labour dispute).
701
The brief facts leading to the present appeal are such that: - the respondent was
employed by the appellant, Tanzania Portland Cement Co. Ltd on 4th December,
2006 in the position of a sales manager. In 2010, he was promoted to the position of
Sales and Marketing Director. He held that position till his termination on 15th
January, 2015. He was alleged to have taken bribe from a client with a motive of
securing or extending distribution deals. He was also alleged to have issued fraud
credit note to a client, interpolation of middleman to transport cement for his self-
benefit, contravening the suspension directives and non-cooperation during the
investigation. Aggrieved by such termination, he filed a complaint before the CMA
alleging that he was unfairly terminated from service and sought to be reinstated or
compensated for breach of employment contract.
In order to establish that the termination of the appellant was substantially and
procedural fair, the respondent called a total of four witnesses, Danford Semwenda
(DWl), Jonex Joel Kinyonyi (DW2), Ebenezer Ammon (DW3) and Alfonso
Rodriguez (DW4). On his part, the respondent testified himself as PW2 and called
one witness, Lazaro Paulo Masunga (PWl). After hearing the evidence from both
parties, the CMA found that the termination was substantially and procedurally
unfair. It thus ordered the appellant to be reinstated unconditionally without loss of
benefits and be paid Tanzania Shillings one million only (TZS. 1,000,000.00) as
nominal damages.
The appellant was not satisfied with the award. It filed an application for revision
vide Revision No. 391 of 2016 in the High Court of Tanzania, Labour Division (the
High Court). When that application was called for hearing on 23rd October, 2017
before Honourable Moshi, J, the respondent conceded to it on procedural
technicality. Accordingly, the learned Judge remitted the award to the arbitrator to
deliver it in accordance with the law.
According to the record of appeal, the corrected award was delivered to the
respondent on 30th November, 2017 and the appellant on 6th December, 2017. Still
aggrieved, the appellant lodged another revision application vide Revision No. 8 of
2018 in the High Court, the subject of the present appeal. After hearing the parries,
the High Court concurred with the arbitrator that termination of employment of the
respondent was substantially unfair because the applicant failed to prove the
allegations against the respondent. On the procedure for termination, the High Court
702
found that the procedure was followed hence termination was procedurally fair. For
the reason that the procedure was fair, the learned Judge varied the arbitrator's award
of unconditional reinstatement without loss of benefit to payment of compensation
of 12 months' salary plus other entitlements in line with section 40 (3) of the
Employment and Labour Relations Act, [Cap. R.E. 366 of 2019] (ELRA). Still
aggrieved, the appellant filed the present appeal. The appellant listed the following
four grounds in its memorandum of appeal:
1. That, having correctly found that the CMA records do not

show that the court order issued on 23rd February, 2017 was
fully complied with, the High Court erred in law in
disregarding such irregularity and continued determining the
matter as it did.
2. That, the High Court erred in law in failing to hold that the
CMA award has never been delivered in accordance with the
law.
3. That, the High Court Judge misdirected herself on the
application of section 40 (3) of the Employment and Labour
Relations Act [Cap. R.E 366 of 2019] (ELRA) and thereby
erred in law in leaving the appellant's grievances against the
finding of the CMA of ordering the reinstatement of the
respondent unresolved.
4. That the High Court Judge erred in law in not finding the
CMA's award irregular for distortions of evidence resulting
from composing the award in a different language from that
of the proceedings.
At the hearing of the appeal, the appellant was represented by Messrs. Timon Vitalis
and Andrew Rweikiza, learned advocates whereas the respondent had the services
of Mrs. Victoria Paulo and Mr. Eliphafra Ally, also learned advocates.
At the very outset, before the parties were allowed to submit on the grounds of
appeal, we invited them to address us on the propriety of the proceedings of the
703
CMA regard being had to the fact that the testimonies of some of the witnesses were
received without oath or affirmation.
Mr. Vitalis was first to address us. He readily conceded that the appeal is not proper
before us because the CMA's proceeding is flawed with procedural technicality in
that some of the witnesses of the appellant, DW1 at page 36 and DW2 at page 40
and all the witnesses for the respondent, PW1 and PW2 at pages 56 and 62,
respectively was received without oath or affirmation thus their evidence was no
evidence in the eyes of law and could not be acted on to determine the appeal before
us. He elaborated that rule 25 (1) of the Labour Institutions (Mediation and
Arbitration) Rules, Government Notice No. 67 of 2007 (henceforth GN No. 67 of
2007) mandatorily requires a witness before the CMA to take oath or affirmation
before the reception of any witness's evidence and a contravention of it invalidated
the entire trial court proceedings. It was his submission that since the evidence of
the DW1, DW2, PW1 and PW2 was received without oath or affirmation then their
testimonies were invalid. He contended that after discarding the evidence of the
respondent who was a complainant there would be no other evidence left to support
the complainant before the CMA. He therefore urged us to nullify the proceedings
of the CMA, quash and set aside the award and remit back the labour dispute to the
CMA for retrial.
Mrs. Paulo supported the submission made by her learned friend Mr. Vitalis. She
conceded that the testimonies of all witnesses for the respondent and two witnesses
from the part of the appellant were received without oath or affirmation. She also
agreed that such an omission rendered their evidence invalid thus vitiated the CMA's
proceedings. On the way forward, she agreed with the submission of the learned
advocate for the appellant that the labour dispute be remitted back to the CMA for a
retrial.
In rejoinder, Mr. Vitalis reiterated his submission that the omission is so fatal as it
vitiated the entire proceedings of the CMA.
Having dispassionately considered the submissions by the parties and gone through
the record of appeal particularly the record of the CMA what is evident is that the
mainstay issue for determination is the validity of the CMA's proceedings.
704
Indeed, as rightly observed by the learned counsel for the parties, except for the
testimonies of DW3 and DW4 other witnesses for the appellant and all witnesses for
the respondent were received without oath or affirmation. It is on record that the
evidence of DW1 at page 35 -38, DW2 at page 40 - 42, PW1 at page 56 - 61 and
PW2 at page 62 - 71 was received without oath or affirmation. This is in
contravention of section 25 (1) of GN No. 67 of 2007 which provides:
25 (1) The parties shall attempt to prove their respective cases
through evidence and witnesses shall testify under oath
through the following process -
(a) Examination in Chief -
information about the issues in dispute obtains that
(ii) Parties are predicted to ask leading questions during an
examination in chief.
(b) Cross-examination: -
(i) The other party or parties to the dispute may after a witness
has given evidence, ask any questions to the witness about
issues relevant to the dispute;
(ii) Obtain additional information from the witness or
challenge any aspect of the evidence given by the witness;
leading questions are allowed at this stage of proceedings.
(c) Re-examination, the party that initially called the witness
has a further opportunity to ask questions to the witness
relating to issues dealt with during cross- examination and the
purpose of re-examination. [Emphasis added].
This Court has repeatedly emphasized the need of every witness who is competent
to take oath or affirmation before the reception of his or her evidence in the trial
court including the CMA otherwise the testimony of such witness amounts to no
evidence in law thus it becomes invalid and vitiates the proceedings as it prejudices
the parties' case (see the cases of Kabula Luhende v. The Republic, Criminal Appeal
No. 281 of 2014, Hamis Chuma @ Hnado Mhoja and Another v. The Republic,
Criminal Appeal No. 371 of 2015, Jafari s/o Ramadhani v. The Republic, Criminal
705
Appeal No. 311 of 2017, Nestory Simchimba v. The Republic, Criminal Appeal No.
454 of 2017, and Catholic University of Health and Allied Science (CUHAS) v.
Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020, (All unreported)).
For instance, in the case of Catholic University of Health and Allied Science
(CUHAS) (supra) where the Court was faced with a similar circumstance, it held that
the irregularity vitiated the proceedings. In that appeal, both the witness for the
appellant and the respondent gave their evidence without oath or affirmation. Alter
reproducing the provisions of section 25 (1) of GN No. 67 of 2007, the Court stated:
From the provision which has been reproduced above, it is
mandatory for a witness to take oath before he or she gives
evidence before the CMA...where the law makes it mandatory
for a person who is a competent witness to testify on oath,.
the omission to do so vitiates the proceedings because it
prejudices the parties' case.
In the same vein, since DW1, DW2, PW1 and PW2 were competent witnesses whose
testimonies ought to have been received under oath or affirmation but that
requirement was not observed, their evidence becomes invalid and vitiated the entire
proceedings in the CMA. Consequently, we invoke the provisions of section 4 (2) of
the Appellate Jurisdiction Act, [Cap. 414 R. E. 2019] and declare that the entire
proceedings of the CMA are a nullity. We therefore quash the same. We further
nullify and quash the proceedings of the High Court because they emanated from
nullity proceedings of the CMA.
In the end, we set aside the award of the CMA and the judgment and decree of the
High Court. On the way forward, we direct that the record be remitted back to the
CMA for the labour dispute to be tried de novo before another arbitrator. We make
no order as to costs because the appeal arose from a labour dispute.
Proceedings quashed
UNILEVER TEA TANZANIA LIMITED v. DAVIS PAULO CHAULA

706
AT IRINGA
(MWARIJA, KWARIKO, and MWAMPASHI, JJ.A.)
Division at Iringa, Banzi, J., dated 12th April, 2019, in Labour Revision No. 30of
2017)
Evidence – taking oath by witnesses – Arbitrator recorded the evidence of witnesses
without having requiring them to take oath - failure by arbitrator to take oath from
the witnesses – consequences thereto.
Procedural requirement – record of proceedings – failure by arbitrator to put
signature at the end of record of evidence of witness – whether fatal.
The respondent was an employee of the appellant in the position of a Security Guard.
His employment was terminated on the grounds of absenteeism and gross
insubordination after a disciplinary hearing was held. The respondent was aggrieved
by the appellant's decision to terminate him from employment and therefore, he filed
a complaint before the Commission for Mediation and Arbitration. The respondent
lost his case in the CMA. Aggrieved by the decision of the CMA, the respondent
applied for revision before the High Court of Tanzania, Labour Division. The High
Court declared that the decision of the CMA was erroneous and therefore, reversed
it and proceeded to award the respondent compensation. Aggrieved, the appellant
preferred this appeal.
Before the appeal could proceed to hearing, the Court wanted to satisfy itself on the
propriety or otherwise of the proceedings of the CMA, in particular, the manner in
which the evidence of the witnesses was taken. From the record, the Arbitrator
recorded the evidence of some of the witnesses without requiring them to take oath.
Held: i) Swearing in of a witness before he testifies is a mandatory requirement,

there is no gainsaying that the omission vitiates the proceedings because it renders
the evidence which is not taken under oath invalid.
707
ii) Without the signature of the Arbitrator, the authenticity of evidence of the
witnesses would obviously be put to doubt and for that reason, be invalid.
iii) The purpose of signing the proceedings is to authenticate them, its omission
vitiates the proceedings.
Proceedings quashed
Cases referred to
(1) Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania
Mkunde Athanase, Civil Appeal No. 257 of 2020 and Iringa International
School v. Elizabeth Post, Civil Appeal No. 155 of 2019

(1) Section 40 (1) (c) of the Employment and Labour Relations Act [Cap. 366
R.E. 2002];
(2) Section 4 (a) of the Oaths and Statutory Declarations Act [Cap 34 R.E. 2019];
and
(3) Section 4 (2) of the Appellate Jurisdiction Act [Cap 141 R.E. 2019].
Mr. Bidya, for Appellant

MWARIJA, J.A.: The respondent, David Paulo Chaula was an employee of the
appellant, Unilever Tea Tanzania Limited, having been employed since 1997 in the
position of a Security Guard. On 26/8/2016 he was terminated from employment on
the grounds of absenteeism and gross insubordination. The appellant's disciplinary
committee (the committee) found that the respondent had refused to register himself
708
in the newly introduced biometric attendance system intended to simplify and
centralize the payroll system. The committee also found him guilty of having
absconded from duty for four consecutive days from 25/5/2016 to 28/5/2016. The
appellant had also, prior to the respondent's termination, served him with seven
written warnings following his frequent absenteeism.
The respondent was aggrieved by the appellant's decision to terminate him from
employment and therefore, on 2/9/2016, he filed a complaint before the Commission
for Mediation and Arbitration, Mafinga (the CMA), Labour Dispute No.
CMA/IR/MAF/60/2016. He complained that he was unfairly terminated and thus
prayed for an order awarding him compensation and other terminal benefits for
having been unfairly terminated. Having heard the dispute, the CMA decided that
the respondent was fairly terminated. It found thus that he was not entitled to
terminal benefits provided under s. 40 (1) (c) of the Employment and Labour
Relations Act [Cap. 366 R.E. 2002].
Aggrieved by the decision of the CMA, the respondent applied for revision before
the High Court of Tanzania (Labour Division). He challenged the finding of the
CMA that the appellant had valid and fair reasons for terminating his employment.
He also challenged that decision contending that it was arrived at without following
the laid down procedure. Having heard the parties, the High Court (Banzi, J.),
reversed the decision of the CMA. It found, first, that since prior to his termination,
the respondent had been served with written warnings as a result of his absenteeism,
it was inappropriate to charge him, on the same day of the last written warning, with
the charge based on the same breach, before the committee, the outcome of which
resulted into his termination. The learned Judge was of the view that the respondent
was, as a result, subjected to double punishment.
With regard to the ground of refusal to register himself in the biometric attendance
system, the High Court agreed with the CMA that his termination on that ground
was for valid reason because by that refusal, he committed gross insubordination. It
found however that, although the termination was substantially fair, it was
procedurally unfair. The learned High Court Judge observed that, in conducting
disciplinary proceedings, the committee breached the provisions of rule 13 of the
Employment and Labour Relations (Code of Good Practice) Rules, 2007 G.N. No.
42 of 2007 in that; according to the procedure, investigation should have been
709
conducted to ascertain whether there are grounds for the hearing to be held. Since
that was not done, the learned Judge found that the respondent's termination was
procedurally unfair.
Having so found, the High Court declared that the decision of the CMA was
erroneous and therefore, reversed it and proceeded to award the respondent
compensation of twelve month's salary computed at the amount which was payable
at the date of his termination.
The appellant was aggrieved by the decision of the High Court and thus brought this
appeal raising a total of eight grounds which for reasons to be apparent herein, we
are not going to consider them.
At the hearing of the appeal, the appellant was represented by Mr. Jackson Bidya,
learned counsel. On his part, the respondent appeared in person, unrepresented.
Before the appeal could proceed to hearing, the Court wanted to satisfy itself on the
propriety or otherwise of the proceedings of the CMA, in particular, the manner in
which the evidence of the witnesses was taken. From the record, the Arbitrator
recorded the evidence of the witness for the appellant Dania Kema and that of the
respondent without having required them to take oath. As a result, the witnesses did
not testify under oath.
Mr. Bidya conceded to the existence of the irregularity point out by the Court and
submitted that the omission has the effect of vitiating the proceedings of the CMA.
He argued that, under rule 25 (1) of the Labour Institutions (Mediation and
Arbitration Guidelines), G.N No. 67 of 2007 (hereinafter referred to shortly as “G.N
No. 67 of 2007’), the witnesses ought to have taken oath before they testified. He
added that the proceedings are also defective for want of the Arbitrator's signature
after the recorded evidence of the witnesses.
On his part, apart from conceding to the defects the respondent did not have any
substantial argument to make, understandably because the point at issue was one of
law.
It is clear from the record that the Arbitrator did not exercise the power vested in her
by rule 19 (2) (a) of G.N. No. 67 of 2007, to administer oath to the witnesses before
she recorded their evidence. As submitted by the appellant's counsel, the omission
710
contravenes the provisions of rule 25 (1) of G.N No. 67 of 2007 which states as
follows:
25 - (1) The parties shall attempt to prove their respective
cases through evidence and witnesses shall testify under
oath through the following process -
(a) Examination in chief -
information about the issues indispute obtains that
(ii) Parties are predicted to ask leading questions during
an examination in chief.
(b) Cross examination: -
(i) The other party or parties to the dispute may, after a
witness has given evidence/ ask any questions to the
witnesses about issues relevant to the dispute;
(ii) Obtain additional information from the witness or
challenge any aspect of the evidence given by the witness;
leading questions are allowed at this stage of proceedings.
(c) Re-examination the party that initially called
the witness has a further opportunity to ask questions to the
witness relating to issues dealt with during cross-examination
and the purpose of re-examination. [Emphasis added].
Since therefore, swearing in of a witness before he testifies is a mandatory

requirement, there is no gainsaying that the omission vitiates the proceedings
because it renders the evidence which is not taken under oath, invalid. This is more
so, regard being heard to section 4 (a) of the Oaths and Statutory Declarations Act
[Cap 34 R.E. 2019] (the Act) which states that:
4-
Subject to any provision to the contrary contained in any
written law, an oath shall be made by-
711
(a) Any person who may lawfully be examined upon oath or
give or be required to give evidence upon oath by or before a
court.
This provision applies to the CMA by virtue of s. 2 of the Act read together with rule
25 (1) of G.N No. 67 of 2007 - See the cases of Catholic University of Health and
Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase, Civil Appeal No. 257 of
2020 and Iringa International School v. Elizabeth Post, Civil Appeal No. 155 of
2019 (both unreported).
As stated above, Mr. Bidya has argued that the proceedings are also defective for
want of the Arbitrator's signature on the recorded testimony of the witnesses. We
agree with him. The record clearly shows that the Arbitrator did not insert her
signature at the end of the recorded evidence of the witnesses. Without the signature
of the Arbitrator, the authenticity of evidence of the witnesses would obviously be
put to doubt and for that reason, be invalid. - See the case of Iringa International
School (supra). In that case in which, like in the case at hand, the Arbitrator did not
insert her signature in the proceedings after recording the evidence of each of the
witnesses, the Court took inspiration from inter alia, O.XVIII r. 5 of the Civil
Procedure Code [Cap. 33 R.E. 2019] which states as follows:
The evidence of each witness shall be taken down in writing,
in the language of the Court, by or in the presence and under
the personal direction and superintendence of the judge or
magistrate, not ordinarily in the form of question and answer,
but in that of a narrative and the judge or magistrate shall
sign the same.
Upon consideration that the purpose of signing the proceedings is to authenticate
them, the Court held that the omission vitiated the proceedings of the CMA. The
position applies to this case as well.
Having found that the irregularities have the effect of vitiating the proceedings, we
have no option but to exercise the powers of revision vested in the Court by s. 4 (2)
of the Appellate Jurisdiction Act [Cap 141 R.E. 2019] and quash them as we hereby
do. Consequently, the proceedings of the High Court are also hereby quashed and
712
the award is set aside. On the way forward, we order that the record be remitted to
the CMA for hearing of the dispute de nova before another Arbitrator. This being an
appeal arising from a labour dispute, we make no order as to costs.
Proceedings quashed
VENERANDA MARO & ANOTHER v. ARUSHA INTERNATIONAL

CONFERENCE CENTRE
AT ARUSHA
(Appeal from the Ruling and decree of the High Court of Tanzania (Labour
Division) at Arusha, Maige, J., dated 10th January, 2019 in Labour Revision No.
167 of 2015)
Termination of employment – remedies – whether unfair termination on substantive
and procedural matters attract the same penalty.
Remedies – grant of an award – whether the arbitrator or Labour Court has
discretion to decide on the appropriate quantum of compensation.
Procedural requirements – exercise of discretionary powers – whether the appellate
court can interfere with the exercise of discretion of an inferior court or tribunal.
The appellants were both employed as medical personnel by the respondent. They
both happened to be members and leaders of the Tanzania Nurses Association
(TANNA) an association tasked with among others things, to act as an agent to
bargain for the rights of professional nurses. Acting in the capacity of TANNA, a
complaint was lodged to the respondent in respect of delayed promotions and salary
increments of the members at the AICC in vail. Thus, on behalf of TANNA, the
complaints were forwarded to the Permanent Secretary, Ministry of Foreign Affairs
and East African Cooperation vide a letter which was copied to the respondent. The
713
respondent perceived such act as gross insubordination which was punishable by
termination from the employment. As a result, disciplinary proceedings were
initiated against the appellants as leaders of TANNA. The disciplinary proceedings
were conducted by the respondent in their absence, followed by termination from
the employment.
Aggrieved by the respondent's decision, the appellants successfully preferred the
matter to the Commission for Mediation and Arbitration. The CMA found the
termination was both substantively and procedurally unfair. Undaunted, the
respondent lodged an application for revision in the High Court of Tanzania. The
High Court did uphold the decision of the CMA on the termination being
substantively unfair, however, it varied and reduced the sum of compensation
awarded by the CMA. Discontented, the appellants have preferred the present appeal
Held: i) It is settled law that the substantively unfair termination attracts heavier
penalty as opposed to procedural unfairness which attracts lesser penalty.
ii) Although the law prescribes the minimum amount to be awarded as compensation
for termination which is not less that twelve months' salary, it is settled law that the
arbitrator or the Labour Court has discretion to decide on the appropriate award
compensation which could be over and above the prescribed minimum.
iii) The discretion must be exercised judiciously taking into account all the factors
and circumstances in arriving at a justified decision. Where discretion is not
judiciously exercised, certainly, it will be interfered with by the higher courts.
iii) The circumstances upon which an appellate court can interfere with the exercise
of discretion of an inferior court or tribunal are: one, if the inferior Court misdirected
itself; or two, it has acted on matters it should not have acted; or three, it has failed
to take into consideration matters which it should have taken into consideration and
four, in so doing, arrived at wrong conclusion.
Appeal dismissed
Cases referred to
(1) The Cooper Motors Corporation Ltd v. Moshi/Arusha Occupational Health
Services [1990] T.L.R 96
714
(2) Razia Jaffer Ali v. Ahmed Sewji and Five Others [2006] T.L.R 433
(3) Kemp t/a Centralmed v. Rawlins [2009] 30 ILJ 2677
(4) Felician Rutwaza v. World Vision Tanzania, Civil Appeal No. 213 of 2019,
(5) Pangea Minerals Limited v. Gwandu Majali, Civil Appeal No. 504 of 2020
(6) Sodetra (SPRL) Ltd v. Mezza & Another Labour Revision No. 207 of 2008
(7) Viljoen v. Nketoana Local Municipality [2003] 24 ILJ 437
(1) Section 37 of the Employment and Labour Relations Act [Cap 366 R.E. 2002]
Mr. Mwanga, for Appellants

Mr. Lwenge, Senior State Attorney, Mr.Ndalahwa and Ms. Zamaradi, State
Attorneys, for Respondent

MUGASHA, J.A.: The appellants, Veneranda Maro and Winfrida Ngasoma were
both employed as medical personnel by the respondent, the Arusha International
Conference Center (the AICC). The first appellant was employed as assistant nursing
officer from 19/10/1983, whereas the second appellant was employed as a Medical
Officer grade II from 29/10/1991. They both happened to be members and leaders
of the Tanzania Nurses Association (TANNA) an association tasked with among
others things, to act as an agent to bargain for the rights of professional nurses.
Acting in the capacity of TANNA, a complaint was lodged to the respondent in
respect of delayed promotions and salary increments of the members at the AICC.
The respondent's reply was that, since TANNA was not a recognized bargaining
715
agent, the complaint should be channeled through Tanzania Union of Industrial and
Commercial Workers (the TUICO). Thus, on behalf of TANNA, the complaints
were forwarded to the Permanent Secretary, Ministry of Foreign Affairs and East
African Cooperation vide a letter which was copied to the respondent.
The respondent perceived this as gross insubordination which in terms of section 37
of the Employment and Labour Relations Act [Cap 366 R.E. 2002] (the ELRA), was
punishable by termination from the employment. As a result, disciplinary
proceedings were initiated against the appellants as leaders of TANNA. Upon being
required to answer charges levelled against them, they declined to make any
response on ground that, they had authored the letter in question to the Permanent
Secretary as leaders of TANNA and not in their personal capacity as employees of
the AICC. As such, the disciplinary proceedings were conducted by the respondent
in their absence, followed by termination from the employment.
Aggrieved by the respondent's decision, the appellants successfully preferred the
matter to the Commission for Mediation and Arbitration (the CMA) which found the
termination was both substantively and procedurally unfair, awarded the appellants
120 months' salary being compensation for the unfair termination. Undaunted, the
respondent lodged a Labour Application No. 167/2015 before the High Court of
Tanzania at Arusha seeking to have the decision of the CMA revised. Although the
High Court did uphold the decision of the CMA on the termination being
substantively unfair, however, it varied and reduced the sum of compensation
awarded by the CMA to 48 months' salary.
Discontented, the appellants have preferred the present appeal to the Court
challenging the decision of the High Court. In the Memorandum of Appeal, the
appellants have fronted four grounds of complaint as follows:
1. That, the High Court Labour Division erred in law and fact
by interfering with the quantum amount awarded by the
Commission for Mediation and Arbitration at Arusha
contrary to the law.
2. That the High Court labour Division erred in law and facts
in holding that “the award was excessive” whilst at the
716
same time the court admits that the termination by the
appellants was unfair and that there were various
extenuating factors in support of the awarded
compensation.
3. That the High Court Labour Division misdirected itself in
law by interfering with Commission for Mediation and
Arbitration award without establishing as to whether the
said arbitrator invoked wrong and or irregular principles
in awarding the appellants One Hundred and Twenty (120)
months as Compensation.
4. That the High Court erred in law and fact for failure to
apply its discretion Judiciously under the law and partly
reach into an erroneous decision.
At the hearing of the appeal, the appellants were represented by Mr. Innocent
Mwanga, learned counsel, whereas the respondent had the services of Mr. Solomon
Lwenge, learned Senior State Attorney and Mr. Xavier Ndalahwa and Ms Zamaradi,
both learned State Attorneys. Parties adopted the written submissions filed
containing arguments for and against the appeal. Prior to the hearing, with leave of
the Court, the respondent's counsel withdrew the preliminary objections earlier filed.
On taking the floor, Mr. Mwanga argued the three grounds of appeal together as the
written submissions. He faulted the decision of the High Court in varying the
decision of the CMA which awarded the appellants compensation amounting to 120
months' salary. On this he argued, the CMA’s awarded compensation was above the
prescribed minimum of 12 months' salary because: one, the termination was
substantively unfair; and two, it is undisputable that the appellants had a good record
of employment with long term service with the respondent. It was also submitted
that, the award by CMA suffices as damages to remedy loss of income on account
of unlawful termination on the part of the appellants considering that, CMA's award
does not attract interest and it has not been paid out to the appellants for the past
seven years. In this regard, it was the appellant's counsel argument that, it was a
misdirection on the part of the learned High Court Judge to vary and reduce CMA's
award without stating the factors which were not considered by the CMA and the
reasons for the interference. To support his propositions, he cited to us the case of
717
The Cooper Motors Corporation Ltd v. Moshi/Arusha Occupational Health
Services [1990] T.L.R 96 and Razia Jaffer Ali v. Ahmed Sewji and Five Others
[2006] T.L.R 433.
It was further argued that, in varying the award by the CMA, the learned High Court
Judge did not exercise his discretion judiciously which resulted into an erroneous
decision. He thus urged the Court to allow the appeal and reinstate the award by the
CMA.
On the other hand, Mr. Lwenge as well adopted the written submissions filed by
Advocate Kelvin Kwagilwa who earlier on represented the appellant before the High
Court. In the said written submissions, it was contended that the learned High Court
was justified to vary and reduce CMA’s award having considered that: one, the
appropriate quantum of compensation to be 48 months' salary in terms of section 40
(1) (c) of the ELRA; and two, the appellants' unwillingness to be reinstated in the
employment which caused loss of remuneration. Finally, Mr. Lwenge urged the
Court to dismiss the appeal because the decision of the High Court is justified.
Upon being referred to Rule 32 of the Labour Institutions (Mediation and
Arbitration) Rules, 2007 (the Mediation and Arbitration Rules) which gives an
employee option to refuse reinstatement and if the blame on the appellants to refuse
reinstatement was justified, surprisingly, Mr. Lwenge, supported the stance taken by
the learned High Court Judge. Also, when asked if the arbitrator had considered all
the factors surrounding the unfair termination in terms of the criteria stipulated under
Rule 32 (5) of the Mediation and Arbitration Rules, he had nothing useful to submit
in that regard.
Having considered both written and oral submissions of the learned counsel, all the
three grounds of appeal shall be determined together in line with the order adopted
by the learned counsel in their written submissions containing arguments for and
against the appeal. We have conveniently adopted such mode because basically, the
appellants are faulting the High Court in varying the quantum of compensation for
the unfair compensation which was granted by CMA. In that regard, while the
appellants contend that the learned High Court did not properly exercise its
discretion in reducing the sum to be compensated, the respondent contends otherwise
arguing that the award of the CMA was justified.
718
Remedies for the unfair termination from employment are regulated by section 40
(1) of the ELRA and the Mediation and Arbitration Rules. While section 40 (1) of
the ELRA vest upon the CMA and the Labour Court with discretion to make award
of compensation which is not less than twelve months' remuneration, Rule 32 the
Mediation and Arbitration Rules prescribes remedies for unfair termination, criteria
and modality of making an award which necessitates the engagement of an employee
as it stipulates as follows:
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.
(d), the termination was unfair because the employer did not
follow a fair practice.
(3). Re-engagement shall be subject to any terms of
employment that the arbitration may decide.
(4). For the purpose of these rules re-instatement means that
an employee shall be put back in the job unconditionally.
(5). Subject to sub-rule (2J an arbitrator may make an award
of appropriate compensation based on the circumstances of
each case considering the following factors-
(a). Any prescribed minimum or maximum compensation;
(b). the extent to which the termination was unfair
(c). the consequences of the unfair termination for the
parties including the extent to which the employee was able
to secure alternative work or employment.
(d). the amount of the employees' remuneration;
719
(e). the amount of compensation granted in previous
similar cases
(f). the parties conduct during the proceedings; and any
other relevant factors.
In the Republic of South Africa whose Labour legislation is almost similar to ours,
in the case of Kemp t/a Centralmed v. Rawlins [2009] 30 ILJ 2677, the Labour Court
of Appeal considered the relevant factors as to whether the court should or should
not order the employer to pay compensation to include:
...whether the unfairness of the dismissal is on substantive or
procedural grounds or both substantive and procedural
grounds; obviously it counts more in favour of awarding
compensation as against not awarding compensation at all
that the dismissal is both substantively and procedurally
unfair than is the case if it is only substantively unfair, or even
lesser, if it is only procedurally unfair.
On the quantum of compensation to be awarded, The Labour Relations Act 66 of
1995 of the Republic of South Africa prescribes the limits under section 194 which
194 (1) - The compensation awarded to an employee whose
dismissal is found to be unfair either because the employer
did not prove that the reason for dismissal was a fair reason
relating to the employees conduct or capacity or the
employers operational requirements or the employer did not
follow a fair procedure, or both, must be just and equitable in
all circumstances, but may not be more than the equivalent of
12 months' remuneration calculated at the employees rate of
remuneration on the date of dismissal.
(2) The compensation awarded to an employee whose
dismissal is automatically unfair must be Just and equitable
in all the circumstances, but not more than the equivalent of
720
24 months' remuneration calculated at the employees rate of
remuneration on the date of dismissal.
Here at home, it is settled law that the substantively unfair termination attracts
heavier penalty as opposed to procedural unfairness which attracts lesser penalty.
See: Felician Rutwaza v. World Vision Tanzania, Civil Appeal No. 213 of 2019,
Pangea Minerals Limited v. Gwandu Majali, Civil Appeal No. 504 of 2020 and
Sodetra (SPRL) Ltd v. Mezza & Another Labour Revision No. 207 of 2008 (all
unreported). However, apart from prescribing 12 months' salary as the minimum
sum to be awarded as compensation, our legislation is completely silent on the
maximum sum to be awarded and that is why in the present matter the CMA's award
was 120 months' salary. That said, we shall revert to this matter in due course.
Currently, although the law prescribes the minimum amount to be awarded as
compensation for termination which is not less that twelve months' salary, it is settled
law that the arbitrator or the Labour Court has discretion to decide on the appropriate
award compensation which could be over and above the prescribed minimum.
However, the discretion must be exercised judiciously taking into account all the
factors and circumstances in arriving at a justified decision. Where discretion is not
judiciously exercised, certainly, it will be interfered with by the higher courts. See:
Pangea Minerals Limited v. Gwandu Majali (supra).
The circumstances upon which an appellate court can interfere with the exercise of
discretion of an inferior court or tribunal are: one, if the inferior Court misdirected
itself; or two, it has acted on matters it should not have acted; or three, it has failed
to take into consideration matters which it should have taken into consideration and
four, in so doing, arrived at wrong conclusion. See: Credo Siwale v. The Republic,
Criminal Appeal No. 417 of 2013 and Mbogo and Another v. Shah [1968] EA 93.
Confronted with akin situation in the case of Pangea Minerals Limited v. Gwandu
Majali (supra), the Court said:
...It was incumbent on the learned High Court in revising the
decision of the CMA to consider if the arbitrator took into
account all factors and circumstances in arriving at its
decision and if the decision was justified. We are fortified
721
in that regard, because sitting in revision, the High Court
was required to consider if the arbitrator made a proper
evaluation of all the facts and circumstances and whether
or not the decision was judicially a correct one. [Emphasis
supplied]
In the present case it is not disputed that, the termination of employment of the
appellants was substantively unfair and the law is settled that it attracts a heavier
penalty as opposed to procedural unfairness. Therefore, the question to be answered
is whether or not the discretion was judiciously exercised by the CMA in awarding
the same and if the High Court did the same in varying and reducing the award.
We begin with the reasons given by the CMA in awarding the appellants
compensation of 120 months' salary as reflected at page 728 of the record of appeal
in the following terms:
Kwa kuwa walaiamikaji hawapo tayari kurudishwa kazini.
Turne inamuamuru mialamikiwa awalipe walalamikaji fidia
ya aJira ya miezi 120 kila mmoja. Hii ni kwa sababu
uachishwaji kazi haukuwa halali Walalamikaji waliachishwa
kazi kwa sababu zisizo na ukweli na ikizingatiwa kuwa
walalamikaji wote walikuwa na rekodi nzuri ya ajira na
walifanya kazi kwa mlalamikiwa kwa zaidi ya miaka 20 kila
mmoja (refer S. 40) © of ELRA 6/2004 pamoja na rule 32(5)
of G.N. 67/2007 ambazo zinampa mamlaka muamuzi
kuamua kiwango chochote cha fidia hata kuzidi ujira wa
miezi kumi na mbili) kiwango hicho cha fidia ni halali kwa
mazingka ya shauri hili.
Kuhusu haki zingine kwa mujibu wa 5.44 of ELRA/ 6/2004.
On the part of the High Court, apart from acknowledging that the termination was
substantively unfair, it varied the CMA's award in the light of what is reflected at
page 920 of the record of appeal as follows:
722
Perhaps, the issue which I have to decide is what is the
appropriate quantum of the compensation in the
circumstances, section 40(1) (c) does not set out the guiding
tests to be employed in assessing the quantum of
compensation. The tests are set out in rule 32 (1) (2) and (5)
of the Labour Institution (Mediation and Arbitration
Guidelines) Rules GN.67/07. One of the factors to be
considered is the probable Joss of remuneration. In this
matter, the fairness of termination was not merely
procedural. This would ordinarily attract an order for
reinstatement without loss of remuneration. Indeed, that
could have been the case but for the unwillingness of the
respondents to be the reinstated due to the prevailing
circumstances. The termination of services of the
respondents was in December 2012. The resolution of the
dispute at the arbitral tribunal was in February 2014. There
is a different of more than 14 months. Counting from the date
of this decision there is a difference of hardly five years.
Throughout this period, the respondents have not lost any
remuneration as of the date of termination. So that they are
not denied such entitlements, an amount of 48 monthly
salaries for each is appropriate in the circumstances. The
quantum of 120 months' compensation for each of the
respondent is therefore set aside and substituted with the
amount of 48 months' salaries for each. [Emphasis supplied]
Furthermore, at page 928 the learned Judge of the High Court made the following
observation in reversing the award by the arbitrator as follows:
Where the arbitrator decides to award compensation above
the minimum, there must be justification. In this matter, the
arbitrator justified the award on account of incontrovertible
good employment records of the respondents. Although the
relevance of the said factor in aggravating the quantum of
compensation cannot be doubted, the common sense alone
without the assistance of knowledge would dictate the paucity
723
of the same to rationalise the departure from 12 to 120
months' salaries. Much could have been said to justify the
same. I have thus no hesitation to hold that the assessment
of the quantum of compensation was not rational.
[Emphasis supplied]
From the following excerpts the following is evident: Firstly, the learned High Court
Judge acknowledged and correctly so, that the guiding tests to be deployed in
assessing the quantum of compensation are set out in rule 32 (1) (2) and (5) of the
Mediation and Arbitration Rules. However, with respect, it was not justified for the
learned Judge to blame the appellants to be responsible for loss of remuneration
due to their unwillingness to be reinstated in the employment due to prevailing
circumstances when the matter was before the arbitrator. We say so because,
although under rule 32 (1) of the Mediation and Arbitration Rules, where an
arbitrator finds termination to be unfair, he may order the employer to reinstate, re-
engage the employee or to pay compensation to the employee. However, under sub
rule (2), he is barred from making such orders where the employee does not wish to
be re-instated or re-engaged and if the circumstances surrounding the termination
are such that a continued employment relationship would be intolerable. We reiterate
that, an employee who declines to be reinstated or re-engaged should not be
penalized for exercising a legally prescribed option.
Secondly, it was incumbent on the High Court Judge to consider if the arbitrator
took into account all factors and circumstances in reaching at its decision and if it
was justified and correct. This was ably done by the learned High Court Judge as
opposed to the proposition by Mr. Mwanga who argued otherwise. We say because,
apart from the learned Judge not disputing reasoning given by the arbitrator on
incontrovertible good and long service of the appellants; he had reservations that on
non-consideration of the factor on probable loss of remuneration which made him to
observe that, “much could have been said to justify the same”. We agree with the
learned High Court Judge because the concern he raise, in our considered view,
brings into scene, the CMA's non-consideration of the extent to which the employees
were able to secure alternative work or employment which is among the criteria to
award compensation as prescribed under Rule 34 (5) (c) of the Mediation and
Arbitration Rules. This was crucial considering that the appellants are medical
professionals. Thus, in future we urge both the CMAs and the Labour Court to be
724
guided by the criteria which is crucial in determining among others, what constitutes
probable loss of remuneration for an employee who is terminated.
In the circumstances, since the learned High Court Judge found the reasons for
appellants' termination unfair and invalid but for the lacking consideration of the
factor of the probable loss to justify CMA's award; besides, the blame on the
appellants to refuse reinstatement which we have stated not to agree, he was right in
exercising his discretion judiciously ordering lesser compensation than that awarded
by the CMA.
We have gathered that in the written submissions of the parties, the learned counsel
placed heavy reliance on decisions of the Court propounding the guiding principles
in assessing damages. With respect, we disagree. On this, we borrow a leaf from
the South African case of Viljoen v. Nketoana Local Municipality [2003] 24 ILJ
437 whereby, having considered that in labour disputes compensation for procedural
unfairness also includes a punitive element it was held that:
...compensation is not an award of damages in the contractual
or delictual sense. It includes a penal element against the
employer for failing to get the procedure right, as well as an
element of solace to the employee, in the sense that the
employee has lost the right to be given a procedurally fair
dismissal which is entrenched in the LRA.
We fully subscribe to said decisions considering that the ELRA prescribes the award
of compensation pegged to the employee's monthly salary depending on the nature
of termination that is, procedural or substantive. In the circumstances, the cases of
Cooper Motor Corporation (supra) and Razia Jaffer Ali (supra) cited to us by the
appellants' counsel are distinguishable because as earlier stated, they dealt with the
principle of assessing damages and substitution thereof which is not the case in this
labour matter.
Before concluding, we wish to address the following issue. Earlier on, we discussed
the manner in which under the South African context, the criteria and limited scope
of awarding compensation in cases of unfair termination is prescribed by legislation
on the basis of what is just and equitable to be awarded as compensation.
Unfortunately, this is not what obtains in our jurisdiction, despite having a labour
725
legislation almost similar to that of the Republic of South Africa. In the absence of
the prescribed maximum sum to be awarded as compensation in our jurisdiction,
apart from creating uncertainty, jeopardy is bound to occur in guise of the exercise
of discretion and probably, even in the present matter, the arbitrator was faced with
uncertainty in making the award. This is in our considered view, a matter worth
consideration by the Executive and legislators so as to prescribe limitations in order
to set a clear guide to both the Labour Court and arbitrators on what constitutes an
equitable and just compensation in case substantive and procedural unfairness.
In view of what we have endeavoured to discuss, as earlier intimated, the learned
High Court Judge properly exercised his discretion having ordered lesser
compensation than what was awarded by the CMA. We thus uphold the verdict of
the High Court that the respondent be paid compensation for forty-eight (48) months'
remuneration for the substantively unfair termination. We find the appeal not
merited and it is hereby dismissed.
Appeal dismissed
WILLIAM MWAKITALU AND 29 OTHERS v. PPF PENSION

FUNDS
AT DAR ES SALAAM
(LILA, MWANGESI, and SEHEL, JJ.A.)
(Appeal from the ruling and drawn order of the High Court of Tanzania Labour
Division at Dar es Salaam, Mashaka, J., dated 27th October, 2016, in Revision No.
416 of 2015)
Time limitation - whether the application which was lodged by the appellants in the
High Court, to challenge the award of the CMA, was lodged out of the time
prescribed by the law and whether law prescribes the time limit within which to
serve the award to the parties - section 91 (1) (a) of the ELRA
726
The appellants were the applicants in Labour Revision No. 416 of 2015, which was
lodged in the High Court of Tanzania Labour Division at Dar es Salaam praying it
to revise the award which had been rendered in their favour, by the Commission for
Mediation and Arbitration (the CMA), on the 24th day of August, 2015 and served
on them, on the 31st day of August, 2015.
In response to the application lodged by the applicants, the respondent, filed a
counter affidavit and in addition, raised a preliminary objection founded on two
grounds. The first ground which is relevant to the appeal at hand, was to the effect
that the application for revision had been hopelessly filed out of time, while the
second ground was to the effect that, the application had been supported by an
affidavit incurably defective. The trial Court, sustained the first point of the
preliminary objection and struck out the application, for being time barred. The
appellants felt aggrieved by the ruling of the trial Court, hence this appeal.
Held: i) There is no rule in the Labour Institutions (Labour and Arbitration

Guidelines) Rules G.N No. 67 of 2007, which prescribes the duty and the manner in
which the Arbitrator or the CMA, shall serve the award on the parties. This is the
inadequacy in the employment laws. This uncertainty, is not conducive for the timely
delivery adjudication of labour disputes.
ii) The law should be amended to the effect that, to require the arbitrator to notify
the parties, on the date of delivery of the award and the arbitrator be required to serve
the award to the disputing parties so as to enable them to pursue their rights in case
they are aggrieved.
Appeal allowed
Cases referred to
(1) Serengeti Breweries Limited v. Joseph Boniface, Civil Appeal No. 150 of
2015

(1) Section 91 (1) (a) of the Employment and Labour Relations Act No. 6 of 2004
727
Mr, Kilule, for Appellant

Mr. Daffa, for Respondent

Dated 22nd May, 2020
MWANGESI J.A.: The appellants herein, were the applicants in Labour Revision
No. 416 of 2015, which was lodged in the High Court of Tanzania Labour Division
at Dar es Salaam, on the 8th day of October, 2015 supported by sworn affidavit,
praying it to revise the award which had been rendered in their favour, by the
Commission for Mediation and Arbitration (the CMA), on the 24th day of August,
2015 and served on them, on the 31st day of August, 2015.
In response to the application lodged by the applicants, the respondent, filed a
counter affidavit and in addition, raised a preliminary objection founded on two
grounds. The first ground which is relevant to the appeal at hand, was to the effect
that the application for revision had been hopelessly filed out of time, while the
second ground was to the effect that, the application had been supported by an
affidavit incurably defective. The trial Court, sustained the first point of the
preliminary objection and struck out the application, for being time barred.
The appellants felt aggrieved by the ruling of the trial Court, and have come to this
Court, armed with one ground of appeal only namely:
That, the Honorable Judge, erred in law and in fact, in
construing and/or interpreting the provisions of section 91 (1)
(a) of the Employment and Labour Relations Act No. 6 of
2004 hereinafter to be referred to as the ELRA, by holding
that, in ascertaining the time limit for filing of an application
for revision in the Labour Division of the High Court, from
the award delivered by the Arbitrator, days start to count not
728
from the day of receipt of the award, but from the date of
delivery of the award.
Complying with the requirement stipulated under the provisions of rule 106 (1) of
the Tanzania Court of Appeal Rules, 2019 (the Rules), on the 19th day of October,
2017 the applicants, lodged a written submission in support of the application, which
was responded to by the respondent, vide the reply to the written submission, which
was filed in Court, on the 20th day of November, 2017 in terms of rule 106 (7) of the
Rules. The respondent did also raise a preliminary point of objection, founded on
the ground that, the appeal is fatally defective for being accompanied by a defective
Notice of Appeal and thereby, infringing the provisions of rule 84 (1) of the Rules.
On the date when the appeal was placed for hearing before us, Mr. Hassan Kilule,
learned counsel, held brief for Mr. Salehe Ramadhani, learned counsel, with
instruction to proceed in representing the appellants.
Mr. Iman Daffa, also learned counsel, on the other hand represented the respondent.
At the very outset Mr. Daffa, rose to inform the Court that, he was praying to
withdraw the preliminary point of objection which the respondent had raised, so as
to pave way for the hearing of the substantive appeal, a prayer which was not resisted
by his learned friend. We accordingly marked the preliminary objection withdrawn.
When Mr. Kilule, was invited by the Court, to take the floor and expound the ground
of appeal, he prayed to adopt the written submission which had been lodged plus the
list of authorities, which had also been filed with nothing more. The position taken
by Mr. Kilule, was followed by Mr. Daffa, who also asked us to adopt the lodged
written submission in reply, with nothing to add.
According to the written submissions of the appellants, the learned trial Judge, is
faulted in the way she interpreted the wording in the provisions of section 91 (1) (a)
of the ELRA in that, in computing the limitation period for lodging an application
to challenge the award rendered by the CMA, it has to commence from the date of
the decision. The learned counsel did submit that, according to the practice
pertaining in the CMA, the award is normally not pronounced to the parties, instead
thereof, it is served on them on the date the CMA appoints.
With regard to the award under scrutiny, even though it indicates to have been ready
for collection by the 24th August, 2015 the appellants, were served with its copy on
729
the 31st August, 2015 as reflected on page 566 of the record of appeal. Under the
circumstances, the computation of the limitation period, commenced to count from
then and not otherwise as the learned counsel for the respondent, tries to put. To
fortify the contention, refuge was sought from the decision in Serengeti Breweries
Limited v. Joseph Boniface, Civil Appeal No. 150 of 2015 (unreported).
In view of the foregoing, the learned counsel for the appellants, urged us to allow
the appeal, and let the application for revision which was lodged in the High Court,
to be determined on merits.
On the other hand, the submission in reply by the respondent, is to the effect that the
word "served" as used in the provisions of section 91 (1) (a) of the ELRA, means
the date on when the determination of the application was delivered. In any event,
the learned counsel for the respondent went on to submit, the fact that there is no
specific law prescribing on how the award rendered by the CMA, should be
presented to the parties and when, the learned trial Judge, was justified in using the
date on when the award was delivered, as the date to commence computing the
limitation period.
With regard to the authority which was relied upon by his learned friend in support
of his submission, the learned counsel for the respondent was of the view that, even
though the Court noted that there was a lacuna in the laws governing resolution of
labour disputes, it did not provide a solution on the way forward. That being the
case, the said authority was of no assistance to the appellant.
When the learned counsel was probed by the Court, as to what was the fate of the
appeal which was before the Court of Appeal, in the decision which was relied upon
by his learned friend, he in the first place fumbled to answer it. And after some
recollection, he stated that the appeal was allowed. With such answer, he seemed to
lower his urge to resist the appeal.
From the submission of either side above, the issue that stands for our determination,
is whether the application which was lodged by the appellants in the High Court, to
challenge the award of the CMA, was lodged out of the time prescribed by the law.
To begin with, we reproduce the provisions of section 91 (1) (a) of the ELRA in
which, the dispute between the parties arises. It reads:
730
Any party to an arbitration award made under section 88, who
alleges a defect in any arbitration proceedings under the
auspices of the commission, may apply to the Labour Court
for a decision to set aside the arbitration award: -
(a)Within six weeks of the date that the award was served on
the applicant, unless the alleged defect involves improper
procurement. [Emphasis supplied]
While the appellants, interpret the bolded words in the provision quoted above, to
mean the period after being supplied with the copy of the award by the CMA, the
interpretation given by the respondent, is that it means the period from when the
award was delivered by the CMA. The Court had an occasion of encountering a
similar problem in the case of Serengeti Breweries limited v. Joseph Boniface
(supra), wherein, it was discovered that, there was a lucana in the rules guiding
labour arbitration proceedings. In that regard, it made the following observation:
However, there is no rule in the Labour Institutions (Labour
and Arbitration Guidelines) Rules G.N No. 67 of 2007, which
prescribes the duty and the manner in which the Arbitrator
or the CMA, shall serve the award on the parties. This is the
inadequacy in the employment laws. We are of the considered
view that, this uncertainty, is not conducive for the timely
delivery adjudication of labour disputes. As such, we hereby
direct that, the respective labour legislation be amended to
require the arbitrator to notify the parties, on the date of
delivery of the award and the arbitrator be required to serve
the award to the disputing parties so as to enable them to
pursue their rights in case they are aggrieved.
After having made the above comment, the Court, proceeded to allow the appeal, by
directing the High Court to proceed with the hearing the Court in the previous appeal,
remains to be the proper applicable law. As we held in the earlier case, we allow the
appeal by directing the High Court, to hear the application and determine it on merit.
Order accordingly.
Appeal allowed
731
ZANZIBAR UNIVERSITY v. ABDI A. MWENDAMBO & TWO
OTHERS
AT ZANZIBAR
(MBAROUK, MKUYE, and WAMBALI, JJ.A.)
(Application from the decision of High Court of Zanzibar at Vuga, Sepetu, J.,
dated 13th October, 2017, in Civil Case No. 20 of 2009)
Stay of execution – circumstances in which the court may grant an order for stay of
execution.
The applicant aggrieved by the judgment and decree of the High Court of Zanzibar
in an industrial case, she duly lodged a notice of appeal. In order to stop the execution
of the decree, she lodged this application seeking an order for stay of execution
pending the hearing and determination of the intended appeal.
Held: i) For an application for stay of execution to be granted, three conditions must
be satisfied, namely, lodging a notice of appeal in accordance with Rule 83; showing
good cause; and comply with Rule 11(5) of the Rules.
ii) The three conditions must have to be conjunctively and not disjunctively satisfied
by the party before the application for stay of execution is granted.
Application granted
Cases referred to
(1) Arusha Hardware Traders Ltd and 2 others v. M/s Exim Bank Tanzania
Limited, Civil Application No. 38 of 2015
(2) Manjit Singh Sandhu and 2 others v. Robiri R. Robiri, Civil Application No.
15 of 2014;
732
(3) Tanzania Breweries Limited v. Anthon Nyingi, MZA Civil Application No.
12 of 2014;
(4) Mantrac Tanzania Ltd v. Raymond Costa, Civil Application No. 11 of 2010
(5) Therod Fredrick v. Abdusamadu Salim, Civil Application No. 7 of 2012

Mr. Abdulla, for Applicant

2nd Respondent, in person
1st and 3rd Respondents, Absent
RULING OF THE COURT

Dated 14th December, 2018
MKUYE, J.A.: The applicant was aggrieved by the judgment and decree of the High
Court of Zanzibar dated 13th October, 2017 in Industrial Division-Civil Case No. 20
of 2009. She duly lodged a notice of appeal on 1st November, 2017, and in order to
stop the execution of the decree, she lodged this application seeking an order for stay
of execution pending the hearing and determination of the intended appeal on the
following grounds:
(1) The applicant has filed a notice of appeal against the said
Judgment and decree and they verily believe that in the
intended appeal the Court of Appeal will turn down the
said Judgment and decree.
733
(2) The judgment and decree of the High Court of Zanzibar
(Hon. Justice Mkusa. I. Sepetu) given at Vuga on the
13th day of October, 2017 is problematic, is doomed to
failure and will be rejected by the Court of Appeal.
(3) If the Respondent is allowed to execute the said decree,
the Applicant will suffer irreparable damages.
(4) The costs of and incidental to this application abide by
the result of the said appeal.
The application is by way of Notice of Motion which is made under Rule 11 (3) of
the Tanzania Court of Appeal Rules, 2009 (the Rules) as amended by the Tanzania
Court of Appeal Rules (Amendment) Rules, 2017 (G.N. No. 362 of 2017). The same
is supported by an affidavit duly affirmed by Suleiman Salim Abdulla, learned
advocate for the applicant. The applicant also filed her written submission on
16/1/2018. The respondents did neither file their affidavits nor written submissions
in reply.
When the application was called on for hearing before us, the applicant was
represented by Mr. Suleiman Salim Abdulla learned counsel. The 1st and 3rd
respondents did not enter appearance while the 2nd respondent appeared in person
and unrepresented. Mr. Abdulla intimated us that the 1st and 3rd respondent did not
appear because their dispute has already been settled out of court. He, therefore,
prayed and we granted leave for the matter against them to be withdrawn.
After having dispassionately considered the grounds raised in the application,
the averrement in the affidavit and the submissions of the learned advocate for the
applicant, we think our starting point would be Rule 11 (5) (a), (b) and (c) of the
Rules which sets out the conditions which are to be satisfied before the Court can
order stay of execution. The said Rule provides as follows:
(5) No order for stay of execution shall be made under this
rule unless the Court is satisfied that:
(a) substantial loss may result to the party
applying for stay of execution unless the order is made;
(b) the application has been made without
734
unreasonable delay; and
(c) security has been given by the applicant for the due
performance of such decree or order as may ultimately be
binding upon him.
The conditions for the grant of stay of execution have been emphasized in a number
of decisions of this Court. For instance, in the case of Therod Fredrick v.
Abdusamadu Salim, Civil Application No. 7 of 2012 (unreported) the Court
observed as follows:
On the terms of the present Rulers the Court no longer has the
luxury of granting an order of stay of execution on such terms
as the Court may think Just; rather, the Court must be
satisfied, just as the applicant will be required to fulfil the
following cumulative requirements:
1. Lodging a notice of appeal in accordance with Rule 83;
2. Showing good cause;
3. Complying with the provisions of item
(d) (i), (ii) and (iii) [Now Rule 5 (a) (b) and (c)J.-See
also Manjit Singh Sandhu and 2 others v. Robiri R. Robiri,
Civil Application No. 15 of 2014; Tanzania Breweries
Limited v. Anthon Nyingi, MZA Civil Application No. 12 of
2014; Mantrac Tanzania Ltd v. Raymond Costa, Civil
Application No. 11 of 2010 (all unreported).
We wish also to point out that the three conditions we have enumerated above have
to be conjunctively and not disjunctively satisfied by the applicant before the
applicant's application for stay of execution is granted - (See Arusha Hardware
Traders Ltd and 2 others v. M/s Exim Bank Tanzania Limited, Civil Application No.
38 of 2015 (unreported).
Subjecting the above tests to the material before us, we are satisfied that the applicant
has met all the conditions. This is so because the applicant lodged a notice of appeal
within time as per Rule 83 of the Rules. She lodged it on 1st November, 2017 after
the decision sought to be stayed was delivered on 13th October, 2017 which was 18
735
days after the delivery of the decision. On top of that, she lodged this application on
18th December, 2017 after having been served with the notice of execution on 5th
December, 2017. She therefore, lodged it within 13 days which was in compliance
with Rule 11 (4) of the Rules.
As to the second condition, we are also satisfied that substantial loss may be
occasioned to the applicant if the application for stay of execution is not granted.
This is established in item 3 of the notice of motion and paragraph 7 of the affidavit
in support of the application. The award given to the respondent of 10,346.80 USD
as outstanding salary and the sum of Tshs. 20,000,000/= as compensation for
harassment is a huge amount of money which may not easily be refunded by the 2nd
respondent who is unemployed, if the applicant's appeal succeeds.
As regards the third condition relating to furnishing or undertaking to give security
for the due performance of the decree, we are similarly satisfied that she has satisfied
it. The applicant has, through paragraph 9 of the affidavit, specifically averred that
she is willing to pay any amount of money as security of costs as this Court may
direct. Therefore, this condition has been satisfied as well.
After having given due consideration of the matter before us, we are settled in our
mind that the applicant has satisfied all the conditions to warrant us grant the stay of
execution.
We, therefore, grant the application and stay the execution of the decree of the High
Court of Zanzibar, Industrial Division in Civil Case No. 20 of 2009 pending hearing
and determination of the appeal. We further order that the applicant should deposit
a banks' guarantee of the decretal sum to the tune of 10,346.80 USO and Tshs.
20,000,000/= within twenty-one days of the delivery of this ruling. Each party is to
bear its own costs. It is so ordered.
Application granted
736

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2023

Codification of labour legislation, by itself, will not stabilize the dispute

The extension of the jurisdiction to hear labour cases to Judges in High

This Court of Appeal of Tanzania-Labour Cases Report, in its abbreviation

Prof. Ibrahim H. Juma (PhD)

Dr. Cornel Kinanila Mtaki

This Report is cited thus [2022] CAT-LCR 1

(a) 1 (b) ADELA DAMIAN MSANYA v. TANZANIA ELECTRICITY

(a) Refers to the number of the case reported;

1. Hon. Mr. Justice (Prof.) Ibrahim H. Juma – Chief Justice

St. Joseph Kolping Secondary School v. Alvera Kashushura

2. Judicature and Application of Laws, [Cap 358 R.E. 2002]

3. Appellate Jurisdiction Act [Cap. 141 R.E. 2002]

4. Civil Procedure Act, [Cap 33 R.E. 2019]

5. Criminal Procedure Act [Cap 20 R.E. 2019]

6. National Defence Act 1966 (No. 24)

7. The Oaths and Statutory Declarations Act [Cap 34 R.E. 2019]

8. The Banking and Financial Institutions Act, 2006

9. Evidence Act, [Cap 6 R.E. 2002]

10. The Law of Limitation Act, [Cap 89 R.E. 2002]

11. Constitution of the United Republic of Tanzania 1977

12. Written Laws (Miscellaneous Amendments) (No. 3) Act 2018

14. Interpretation of Laws Act [Cap 1 R.E. 2019]

17. The Social Security Laws (Amendments) Act, 2012

18. Employment Ordinance Cap 366

19. Public Service Act [Cap 298 R.E. 2002]

20. Security of Employment Act [Cap 387 R.E. 2002]

22. Written Laws (Miscellaneous Amendments) Act, 2016, No.13 of 2016

23. Electronic Transactions Act, 2015 No. 13/2015

24. Law of Contract Act Cap 345

1. Termination of Employment Convention, 1982 (No. 158)

2. Discrimination (Employment and Occupation) Convention, 1958 (No.

Employment and Labour Relations (Code of Good Practice) GN. No

Employment and Labour Relations Acts [Cap. 366 R.E. 2019]

Employment and Labour Relations (General) Regulations GN No.47 0f

Industrial Court of Tanzania Act [Cap. 60 R.E 2019]

Law of Contract Act, [Cap 345. R.E.2019]

Law of Limitation Act [Cap 89 R.E 2002]

Judicature and Application of Laws Act [Cap 358 R.E. 2002]

Tanzania Evidence Act [ Cap 6 R.E.2019]

Muhimbili National Hospital Act No. 3 of 2002

Labour Court Rules G.N. No. 106 of 2007

Labour Institutions Act, [Cap 300 R.E 2019]

Public Service (Negotiating Machinery) Act, 2003;

Public Service Regulations, 2003

IN THE COURT OF APPEAL OF TANZANIA

(MUGASHA, SEHEL, and KAIRO, JJ.A.)

CIVIL APPEAL NO. 305 OF 2019

Termination of Employment – Right to be heard - Whether the termination of the

Statotory provisions referred to

Mr. Akyoo, for Appellent

JUDGMENT OF THE COURT

Our Ref MOS/PF/1.882 Date

Adella Damian Msanya, Tanesco Limited,

Meneja wa Mkoa, Tanesco Limited, Moshi.

YAH: TUHUMA DHIDI YANGU

Mtumishi wako mtiifu

ASANTERABI MKONYI v. TANESCO

The appellant was employed by the respondent on various monthly specific

Statutory provisions referred to

JUDGMENT OF THE COURT

37.-(l) It shall be unlawful for an employer to terminate

The above provision creates the concept of unfair termination of employment by

BAHARI OILFIELD SERVICES FPZ LTD v. PETER WILSON