Jimmy Lugendo vs CRDB Bank Ltd (Civil Appeal No. 224 of 2020) [2026] TZCA 629 (3 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: WAMBALI, 3.A.. MAIGE. J.A. And MDEMU, J.A.^ CIVIL APPLICATION NO 655/01 OF 2023 JIMMY LUGENDO ...... ............................................................... APPLICANT VERSUS CRDB BANK LTD ......... ........................................................... RESPONDENT (Application for review of the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) fWambali. Kerefu and Rumanvika, JJA) dated the 4th day of July, 2023 in Civil Appeal No. 224 of 2020 RULING OF THE COURT 7th May & 3rd June, 2026 MAIGE, J.A.: Prior to the dispute giving rise to this application, the applicant served as a bank officer for the respondent. In 2000, the applicant's service was terminated on grounds of underperformance and non- compliance with institutional procedures. At that material time, the dispute was governed by the now-repealed Security for Employment Act,

under which the applicant pursued a reference to the Labour Commissioner. During those proceedings, the parties entered into a settlement agreement (the retirement agreement), effectively recharacterizing the termination as a retirement. This strategic reclassification was intended to preserve the applicant's eligibility for terminal benefits under the PPF and group endowment schemes. Pursuant to that agreement, the applicant was paid the retirement benefit packages as previously stated. Concurrently, the respondent had executed a collective voluntary agreement with its employees, represented by OTTU/TUICO, which also provided for terminal benefits. Relying on this, the applicant sought to recover entitlements under the voluntary agreement in addition to those under the retirement agreement. He, therefore, initiated a trade inquiry before the Labour Commissioner which was eventually transmitted to the now-defunct Industrial Court of Tanzania for determination. While the Industrial Court initially held that the applicant was entitled to benefits under both the voluntary agreement and the subsequent retirement agreement, this decision was later reversed on revision by a panel of three Chairpersons of the defunct Industrial Court. On appeal, the said decision was upheld by the High Court. As the

applicant was still aggrieved, he appealed to the Court, questioning the concurrent findings of the Industrial Court on revision and the High Court for: first, finding that the applicant was not entitled to retrenchment benefits despite the factual determination that his retirement occurred pursuant to retrenchment process; second, failing to distinguish between retirement and retrenchment benefits and thereby denying the applicant his entitlements under the voluntary agreement; and third, failure to hold that the applicant was entitled to retrenchment benefits. In resolving the appeal, the Court held that because the applicant signed the retirement agreement, he was bound by its terms and could not claim any extra benefits beyond what was written in the said agreement. This finding was premised on the common law principle of sanctity of contract, as affirmed by the Court's previous decision in Lulu Victor Kayombo v. Oceanic Bay Limited and Another (Consolidated Civil Appeals Nos. 22 & 155 of 2020) [2021] TZCA 228, TANZLII. The Court further clarified that retirement and retrenchment schemes are mutually exclusive and cannot be pursued concurrently. The Court declined to entertain the issue as to the legality of the settlement agreement as it was neither raised at the Industrial Court nor at the High

Court. In the opinion of the Court, dealing with such an issue for the first time at that particular juncture, would exceed the Court's mandate under section 4(1) of the Appellate Jurisdiction Act. The Court further observed that the High Court would not be faulted on a point which was never presented for its determination. Finally, the appeal was dismissed. Dissatisfied with the judgment, the applicant has moved the Court, under rule 66(1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), to review its own decision mainly on the ground of manifest error apparent on the face of the record. At the hearing of this application, the applicant was represented by learned advocates, Mr. Edward Peter Chuwa and Ms. Anna Lugendo, while Mr. Kyariga Nyaisa Kyariga, also learned advocate, appeared for the respondent. Mr. Chuwa adopted his previously filed written submissions during the hearing, adding minor oral clarifications. Albeit in default of written submissions, Mr. Kyariga, with leave of the Court, advanced oral arguments in rebuttal. We have carefully considered these rival submissions and we shall refer to specific relevant portions of them as we proceed with our deliberations. Prior to the commencement of the hearing, the Court invited the parties to address on the failure by the applicant to cite a specific sub 4

item of rule 66(1) of the Rules in the notice of motion. Mr. Kyariga argued that this omission rendered the application incompetent by leaving the exact legal grounds for review ambiguous. Conversely, Mr. Chuwa contended that the omission was a minor procedural irregularity and, pursuant to rule 48 of the Rules, constituted a curable defect rather than a fatal error. We have carefully weighed the arguments from both sides on this procedural point. We have noted that, despite there being no citation of the particular paragraph constituting the ground of review in the notice of motion, item (1) thereof clearly articulates that the review has been sought based on manifest error apparent on the face of the record, which is the exact ground provided for under rule 66(1) (a) of the Rules. As a result, we agree with Mr. Chuwa that, although the applicant was expected to cite the specific paragraph (a) of rule 66(1) of the Rules in the notice of motion, the omission does not constitute a fatal irregularity that would strip the Court of its jurisdiction. Pursuant to our powers under the proviso to rule 48 (1) of the Rules, therefore/ we elect to ignore this formal defect in as long as it does not prejudice the merits of the application.

Having said that, we now direct our minds on the merits or otherwise of the application. We note that, the applicant has pinpointed, in paragraph (1) of the notice of motion, six complaints which, in his contention, constitute the alleged manifest error apparent on the face of the record. They are as follows: (a) That the Court erred in law in holding that the applicant was not entitled to the benefits under the voluntary agreements. (b) That the Court erred in law in holding that the communication o f the respondent to the Director Genera! o f the Parastatal Pension Fund (PPF) in exhibit D3 which expressly states the applicant was retrenched, did not convey the correct status o f the applicant. (c) That the Court erred in law by failing to interpret the legalposition on the retirement o f employment and ended in a position that resulted in a miscarriage o fjustice. (d) That the Court erred in law in holding that the payment o f PPF benefits to the applicant was a bar for him to be paid benefits under the voluntary agreement which is independent from statutory benefits. 6

(e) That the Court erred in law in refusing to address the legality or otherwise o f the premature retirement o f the applicant contained in exhibit D1 and accordingly the Court erred in law in holding that the termination o f his employment is the same as retirement from employment. (f) That the Court erred in law in holding that the legality o f the agreement to retire the applicant and its interpretation vis a vis retrenchment was not raised in the lower courts and that it was not proper for it to be raised in the Court while it was raised in the High Court and well featured in the judgment o f the High Court. Under section 6 (4) of the Appellate Jurisdiction Act, this Court has powers to review its own decisions. It is trite law that the review jurisdiction is not an alternative to an appeal. It, as we held in the First Assurance Company Limited v. Heritage Insurance Company Limited (Consolidated Civil Application No. 317/16 & 432/01 of 2023) [2025] TZCA 96, TANZLII, aimed at amending or correcting inadvertent errors which, if left, would result into miscarriage of justice. Indeed, review jurisdiction, we said in Chandrankant Joshubhai Patel v. R 7

[2004] T.L.R. 218, is exercised on the presupposition that the Court would have reached a different conclusion had it been fully aware of all the relevant circumstances at the time of the original decision. The Court's jurisdiction to review its own decision is contingent upon the establishment of one or more grounds set out in rule 66(1) of the Rules. In the present application, we are called upon to exercise this power on the basis of manifest errors apparent on the face of the record, a ground which is specifically set out under rule 66(l)(a) of the Rules. Under this provision, the Court may exercise its review jurisdiction where: "(a) The decision was based on a manifest error on the face o f the record resuiting in the miscarriage o fjustice." According to the principle in Chandrakant Joshubhai Patel v. Republic {supra), an error is only considered apparent on the face of the record if it satisfies three specific legal requirements: one, there ought to be an error; two, the error has to be so obvious that it requires no complex legal reasoning or long-drawn process of argument to be seen; and three, the error must have resulted into a miscarriage of justice. Importantly, for the error to be worthy of grounding a review, the three ingredients have to cumulatively exist. 8

The applicant's alleged manifest errors are detailed in items (a) through (f) of the notice of motion, which have been reproduced elsewhere in this ruling. It is evident and as such, Mr. Chuwa conceded that these complaints, on their own, do not explicitly satisfy the legal elements required by the principle established in Japhet Thadei Msigwa v. R (Criminal Appeal No. 7 of 2011) [2013] TZCA 2411, TANZLII. Admittedly, as further observed in the authority just referred, such a procedural gap may be bridged by the supporting affidavit, provided that it clearly discloses those necessary elements. Relying on this position, Mr. Chuwa argued forcefully that the required elements of a manifest error were indeed incorporated into the affidavit and he urged the Court to consider those complaints in determining the application. Upon further inquiry, he clarified that while the first twelve paragraphs of the affidavit by the applicant's counsel provide the case's historical background, paragraph 13 specifically articulates the relevant ingredients for operative error. That paragraph is quoted below: "13. That the applicant is further aggrieved by the judgment o f the Court and has thus preferred this application for Review on the ground that: 9

(1) That the judgment has manifest errors that are apparent on the face o f the record and from which the applicant has been unjustiy denied his rights under the voluntary agreement (2) That the Court made an error o f law in holding that the agreement to retire the applicant before his statutory retirement age and that there is no law that does not allow an employer to retire an employee against his wishes and before the age o f retirement (3) That the Court made an error o f law in holding that the agreement to retire the applicant was voluntarily entered into and that its legality was never contested by the applicant in the lower courts while it was the centrai point o f contentions in the Industrial Court through to the High Court. (4) That the Court erred in law in holding that the payment o f the retirement and retrenchment amounts to double benefits and in the alternative the Court erred in law in holding that the applicant was not retrenched but retired, a fact which is not 10

backed up by any law, agreement, unlike the dictates o f the voluntary agreements which squirely fits the applicant's status. (5) That the Court made an error o f law in holding that the letter authored by the respondent to the Director General o f PPF on the retrenchment status o f the applicant did not convey the contents o f the letter and the Court failed to invoke the rule of estoppel against the respondent and thus the applicant has been unjustly denied his rights under the retrenchment packages of the voluntary agreements. Conversely, Mr. Kyariga argued that the essential elements are entirely absent from the relevant paragraph of the supporting affidavit. He, therefore, maintained that Mr. Chuwa's submission amounts to a mere afterthought that should be rejected out of hand. In any event, Mr. Kyariga submitted that, insofar as the points raised in the respective paragraph challenge the substantive correctness of the decision, they fall entirely outside the purview of review jurisdiction. As demonstrated, the aforementioned paragraph of the supporting affidavit raise four distinct complaints, organized in items (2) through (5). For the sake of clarity, l i

these will be addressed sequentially with the complaint in item (2) being designated as the first complaint, and the subsequent items following as the second, third, and fourth complaints, respectively. In relation to the first complaint, Mr. Chuwa argues that the retirement agreement was void ab initio because it was executed before the applicant had reached the statutory retirement age. Without much ado, we concur with Mr. Kyariga's submission that this ground falls outside the scope of review. As the issue was not decided by the Court, it cannot become a manifest error subject to review as such jurisdiction is intended to correct patent errors in a court's actual findings, and not to provide a platform for litigating entirely new issues for the first time. While we acknowledge Mr. Chuwa's reference to the memorandum of appeal and submissions as evidence that the legality of the retirement agreement was contested at the High Court, these elements are not reflected in the judgment under review. Instead, the judgment explicitly states that the issue was never raised which is why, it declined to adjudicate it. Since review jurisdiction is reserved for correcting patent errors in the record of the decision itself, an issue which does not feature out in such record cannot by definition, constitute an error apparent on 12

the face of the record as per the principle in Chandrakant Joshubhai Patel case. Yet, on the same complaint, Mr. Chuwa faults the Court in holding that there is no law that prohibits the employer to retire an employee against his wishes. There was no specific comment from Mr. Kyariga on this argument. We note, however that, this particular issue has not been addressed in his written submissions. Neither in the oral arguments during hearings. In law, therefore, it is deemed abandoned. That aside, whether the applicant's retirement was against his own wishes, was not in the grounds of appeal before the Court. Indeed, the decision of the Court in the same way as it was in the two courts below, was based on the presupposition that the retirement agreement was freely executed by the parties before the Labour Officer. Since the Court's decision was rooted in the applicant's own consent, the attempt to reopen such an issue by way of review is uncalled for and it lacks any legal basis. In the second complaint, the applicant challenges the Court's alleged determination of the voluntariness or otherwise of the retirement agreement. We reiterate that, this was not the basis of the Court's decision, nor has the applicant identified any portion of that judgment where such a determination was made. Besides, the applicant's claim in

the third compliant that the legality of the agreement was a central point of contention in the lower courts, is not supported by the record. Mr. Chuwa has not demonstrated where this alleged contention was reflected in the judgment of the Court. Thus, to resolve such an issue at this stage would require the Court to search the parties' submissions at the Industrial Court and High Court, the exercise which is, as rightly submitted by Mr. Kyariga, reserved for appellate jurisdiction, not a review. In the fourth complaint, the applicant challenges the Court's finding that, claiming both retirement and retrenchment packages constitutes ’double benefits'. Counsel for the applicant, Mr. Chuwa, cited various foreign authorities to argue that retirement benefits under the specific agreement should be viewed as supplementary to, rather than a substitute for, retrenchment packages. On his part, Mr. Kyariga views this complaint as a disguised ground of appeal. He is quite correct It would appear that, this line of reasoning seeks to fault the Court's evaluation of evidence and interpretation of the law. We hold that any dispute over the Court's interpretation of law or its analysis of evidence is a ground for appeal, not review. Besides, regardless of the position taken in foreign jurisdictions, a challenge to the propriety of the Court's interpretation, especially one requiring a fresh evaluation of the 14

underlying agreements, is strictly an appellate matter. Similarly, the contention that the applicant was retrenched rather than retired, necessitates a reevaluation of the evidence, an exercise which does not, in our view, fall within the purview of an error apparent on the face of the record. We would apply the same reasoning to the final complaint concerning the interpretation of the PPF letter. We think, determining the accuracy of the Court's interpretation would require a fresh examination of the evidence. We note that in his written submissions, Mr. Chuwa has gone to the extent of reproducing the contents of the retirement and retrenchment agreements in substantiating his claim and concluded that, the Court wrongly held that the purpose of the retirement agreement was to retire the applicant and not retrench him. With respect, even if the Court's conclusion was, as Mr. Chuwa argued, contrary to established principles, (which is not the case), such a misdirection would merely constitute an improper consideration of evidence rather than a total failure to consider it, which, as we said above, does not fall within the purview of the review jurisdiction. Addressing this distinction in the Chandrakant case, we observed as follows: 15

" We have no quarrel with that but our first observation is that the contention generally that the court considered the additional evidence in a manner contrary to the establishedprinciples does not, even if correct, constitute an error which will ground an application for review; it may probably be a ground for appeal. I f it were claimed, which it is not, that the additional evidence was not considered at all, rather than it was improperly considered, that would be a different matter; errors in the approach to the evidence as such and even erroneous conclusions therefrom cannot be grounds for review." Mr. Chuwa further submitted that the Court erred in finding no legal prohibition against early retirement by mutual agreement, citing a specific provision in the now-repealed Parastatal Pensions Act (Act No. 14 of 1978). While this argument is raised to challenge the legality of the retirement agreement, it faces two significant hurdles. First, as noted earlier, this issue was never part of the original grounds of appeal and did not form the basis of our determination. Second, determining whether a specific statutory provision prohibits such agreements is a question of statutory interpretation whose correctness or otherwise cannot amount to 16

an error apparent on the face of the record. This complaint is therefore irrelevant and is dismissed. Having thus evaluated the four alleged elements of error, we find that none satisfy the threshold required to warrant the exercise of our review powers. The application is found to be devoid of merit and is hereby dismissed. We make no order as to costs. DATED at DODOMA this 29th day of May, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Ruling delivered virtually, this 03r d day of June, 2026 in the presence of Mr. Kyariga Nyaisa Kyariga, learned counsel for the Applicant and Ms. Anna Lugendo, learned counsel for the Respondent and Ms. Hilda Mcharo Court Clerk; is hereby certified as a true copy of the original.