TATA Africa Holdings (T) Ltd vs Joseph Simon Mwandambo (Civil Appeal No. 267 of 2023) [2026] TZCA 617 (2 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: FIKIRINI. J.A.. RUMANYIKA J.A. And ISSA, J.A.) CIVIL APPEAL NO. 267 OF 2023 TATA AFRICA HOLDINGS (T) L T D ...... ................... ..................... APPELLANT VERSUS JOSEPH SIMON MWANDAMBO ........................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (Labour Division) at Arusha) (Tiq^nqa, J.) dated the 18th day of August 2022 in Labour Revision No. 21 of 2021 JUDGMENT OF THE COURT 13th May & 2n d June, 2026. RUMANYIKA. J.A.: On 8th July, 2014, Tata Africa Holdings (T) Ltd, the appellant employed the respondent, Joseph Simon Mwandambo, as Senior Finance Executive Officer. Their Employer/Employee relationship ended on 30th June, 2019, when the respondent was retrenched for operational reasons. Aggrieved by the termination, the respondent approached Commission for Mediation and Arbitration (CMA) at Arusha, vide Labour Dispute No. CMA/ARS/417/19. Several claims were presented, including payment for the remaining period 1 of the contract, notice in lieu of pay, annual leave, severance allowance, repatriation costs, certificate of service and unpaid salary for the month of June 2019. The CMA found the termination to be unfair and ordered reinstatement, without more. Dissatisfied and desirous of challenging the decision, the appellant succeeded before the High Court of Tanzania at Arusha, in Labour Revision No. 21 of 2021. Consequently, the CMA award was set aside and all the proceedings annulled. The record was remitted to the CMA for re determination of the dispute. Being aggrieved by that decision, the appellant is before this Court with two grounds. They are paraphrased as follows; one, the learned Judge's failure to hold that the CMA skipped some claims, leading to incomplete framing of the triable issues and two, the learned Judge failed to hold that, the claims of repatriation costs and the June, 2019 month salary were also constituted triable issues before the CMA. At the scheduled hearing of the appeal, for the appellant was Mr. Ndanu Emmanuel, learned counsel whereas the respondent was represented by Mr. David Kahwa, learned counsel. At the very outset, the Court wanted to satisfy itself on the competence or otherwise of the appeal. Therefore, the learned counsel addressed us 2 particularly on the validity of the Certificate of Delay which appears at page 170 of the record of appeal, with regard to exclusion of 132 days. Mr. Emmanuel, while referring to the record of appeal, contended that, the impugned decision was handed down on 18/08/2022 and the appellant requested for copy of the proceedings, one day later on 19/08/2022 in writing. That, the Deputy Registrar acknowledged receipt of the said request on 25/08/2022. It was also asserted that, when the appellant was notified of the readiness of the documents, already the intended appeal was out of the prescribed sixty days' limitation. That, on 19/08/2022, the appellant wrote to the Deputy Registrar a letter requesting to be supplied with a Certificate of Delay and the latter notified her of its readiness on 03/01/2023. Therefore, it was contended, counting from 03/01/2023 when the appellant was notified to collect the Certificate of Delay to 02/03/2023 when the appeal was filed, all was within the prescribed sixty days. Further, Mr. Emmanuel contended that, the Deputy Registrar overlooked the actual number of days spent for preparation of the requested documents. Much as, it was asserted, the Certificate of Delay had to be issued unsolicited and therefore, the appellant is not to blame. In reply, Mr. Kahwa contended that, despite the preceding narration of series of events by the appellant's counsel, the Certificate of Delay is invalid, 3 rendering the appeal time-barred. That, the request for the Certificate of Delay was an afterthought, upon the appellant being supplied with other documents a couple of days, previously. Also, it was asserted that there are discrepancies in the Certificate of Delay causing computation of time complex. The Court was implored to strike out the appeal for being incompetent. Rejoining, Mr. Emmanuel insisted that, the Deputy Registrar should have issued the Certificate Delay together with the other documents straight away, which he failed, therefore the appellant is not to blame for any delay caused. That, the said lapse of time is justified under the circumstances, as the appellant could not have appealed in the absence of the said necessary documents whose preparation is solely the domain of the Deputy Registrar, Mr. Emmanuel stressed that, the appeal is otherwise valid and allowable, given the peculiarity of the obtaining circumstances. After hearing the learned counsel's submissions, we reserved a ruling and promised to incorporate it in this judgment. This is it. Notably, the application of rule 90 of the Tanzania Court of Appeal Rules, 2009 (the Rules) is two-way traffic, as follows; One, the intending appellant is obliged to request in writing, copy of the corresponding proceedings from the Deputy Registrar within thirty days of the impugned decision. This has been 4 one of the essential steps towards appealing. Two, the Deputy Registrar is duty bound, as soon as practicable to heed to that request, if failed, to issue a certificate justifying the delay, pursuant to proviso to rule 90(1) of the Rules. To state the obvious, the Certificate of Delay issuable excludes the days used by the Deputy Registrar to prepare the documents requested. It is reconned from the date when the documents were asked for the first time and when the appellant was notified that they are ready for collection. For this case, it was on 19/08/2022 and 23/11/2022, respectively. It is unfortunate, however, that instead of 19/08/2022, the Deputy Registrar quoted 03/01/2023 when the appellant actually requested for a Certificate of Delay. From the observation above, it is clear to us that the Certificate of Delay appearing at page 170 of the record of appeal is not real. It is misleading. It does not actually reflect the date the appellant was notified of the readiness of the documents, other than the Certificate of Delay. Notably, when the certified copy of the proceedings were ready, and at the appellant's disposal, time allowable for appeal had lapsed. For clarity, at page 170 of the record it is certified thus; "This is to certify that the period from 2$h August, 2022 when the applicant requested for copies o f proceedings, judgment, decree and aif 5 appeal documents...up to 3rd January, 2023 when he was notified that the documents were ready for collectionf a total number o f 132 days should be excluded in computing the time ...". It is stressed that, the 25th August, 2022 quoted in the Certificate of Delay actually was not to be the date of the appellant's request but when the Deputy Registrar received it. Therefore, the date the appellant was notified to collect the documents for appeal purposes ought to be 23r d November, 2022, as it appears at page 139 of the record of appeal. Luckily, the appellant requested for the documents timely, as alluded to before. We are aware of the settled legal position that, for a Certificate of Delay to be valid and relied upon its issuance must comply with the requirement of rule 90(1) and (2) of the Rules. See- ABSA Bank Tanzania Limited & Another v. Hjordis Fammestad (Civil Appeal No. 30 of 2020) [2022] TZCA 300. For this case, it cannot be said without any difficulty that the rule cited above was abided to the letter. Nonetheless, the circumstances of the present appeal are unusual and peculiar which has to be resolved in favour of the appellant. We shall explain. At least, there are two undisputed essential facts in the case before us; Firstly, the appellant requested in writing to be supplied with the necessary documents timely and; secondly, the Deputy Registrar dully acknowledged 6 receipt of the appellant's request, but for the subsequently misquoted letters and dates. Therefore, it cannot be said, in all fairness that, by referring to the letter dated 03/01/2023 instead of 19/08/2022, the Deputy Registrar denounced the reality on the ground stated above, while discharging his duty under rule 90(1) of the Rules. Nor did it mean that the appellant did not actually ask for copy of the proceedings at all. Moreover, it may have taken the appellant relatively long, upon being supplied with the documents requested, also to ask for a Certificate of Delay, as asserted by Mr. Kahwa. The appellant is not to blame for the alleged delay. It is so because we know no law which prescribes specific time frame for requesting a Certificate of Delay. If anything, however, counting from 27/10/2022 when probably the Certificate of Delay was due and on 09/12/2022 when the appellant asked for it, it is about two months, which we find to be reasonable and excusable, given the unfortunately confusing scenario caused by the Deputy Registrar, as observed above. It is needless to stress, in strict terms that, issuance of a Certificate of Delay under rule 90(2) of the Rules symbolizes a pleasant but quiet admission of inaction by the Deputy Registrar. We want to express our sincere sentiments, in this case, that although the appellant was not responsible for the delayed documents, still he had to ask for a Certificate of Delay, which he ought to have got as of right. Therefore, the appellant should have not been blamed for the alleged 7 belated request of a Certificate of Delay. If anything, it will be too much demanding from the Court users. Saying so, we are fortified by what has been stressed, by analogy, that no party shall be punished for the conduct of his advocates. See- for instance, Abdallah Juma Kambale v. Noradi Tiliko Mongelwa (Civil Appeal No. 231 of 2018) [2023] T7CA 17730. Therefore, 3rd January 2023 which is the date the appellant was invited to collect the Certificate of Delay, as it appears at page 170 is substituted with 23rd November, 2022, when she was actually notified to collect the requested copy of proceedings, for the interest of justice. It is stressed that, in any judicial proceedings where the court and the parties are likely to share the blame for any anomaly, as is in the present case, the party, who is the appellant for that matter, has to get the benefits of doubt. It is for the above reasons that we proceed to determining the appeal on merit, as follows; Mr. Emmanuel began by adopting the appellant's written submission filed on 02/05/2023. For the first ground of appeal, it was contended that, to hold that the CMA should have gone beyond the three issues framed, as is appearing at page 90 of the record of appeal, the High Court acted erroneously. Let alone the award being set aside, the proceedings of the CMA annulled and an order for determination of the labour dispute afresh. 8 Mr. Emmanuel cited Abdallah Hassan v. Juma Hamis Sekiboko, Civil Appeal No. 22 of 2007 to bolster his contention, faulting the learned Judge. It was clarified that, the three issues concerned fairness or otherwise in the retrenchment, its procedure and the reliefs the parties are entitled to. That, repatriation costs and June, 2019 salary were not identified as triable issues before the CMA nor could they be dealt under cover of the common "other reliefs". Prompted by the Court, Mr. Emmanuel contended that, principally the issues are framed from the pleadings, which the two tribunals below failed to observe. He quickly agreed that, the award at issue did not actually address all the claims sought in the CMA Form No. 1, as it appears at pages 1 to 5 of the record of appeal. Mr. Emmanuel urged us to allow the appeal. Replying, Mr. Kahwa adopted the respondent's written submission filed on 20/07/2023. He asserted that, in terms of rule 24(4) of the Labour Institutions Guidelines GN No. 42 of 2007, the Arbitrator is solely duty bound to frame triable issues. That, all the claims raised in CMA Form No. 1 had to be considered and resolved and, if refused, reasons to be assigned. It was argued further that, the respondent, in his testimony reiterated the claims including repatriation costs, as appearing at page 98 of the record of appeal which were just skipped by the Arbitrator. That, in all fairness triable 9 questions should not have been limited to the said three issues appearing at page 90 of the record of appeal. In addition, the learned counsel asserted that, if anything, the remedies left out by the Arbitrator should have been resolved, at least under the "other reliefs" the parties are entitled to. That, the appellant cannot get out of court empty handed, as is strangely proposed by Mr. Emmanuel, given the nature of the charged offence. To clarify the point, Mr. Kahwa referred to section 45(1) of the Employment and Labour Relations Act, showing the list of possible entitlements for an employee whose termination is found to be unfair, as is the appellant in this case. Therefore, it was further asserted, the case of Abdallah Hamis (supra) is distinguishable from the facts of the present case. It was clarified that, unlike is in this case, in that case the issue was raised but skipped by the adjudicator. That, here, about six claims were left unattended hence, resulting to the respective issues completely not being framed. In fine, Mr. Kahwa asserted that the skipped claims rendered the resultant award inconsequential, as the High Court could not step into the shoes of the CMA to hear and determine them. Rejoining, Mr. Emmanuel more or less reiterated his earlier submission, without more. 10 Upon hearing the submissions by the learned counsel, for and against the appeal, we wish to point out that, the two grounds of appeal are intertwined. They revolve around one complaint namely; the learned Judge erred in failing to hold that, the skipped six claims by Arbitrator also resulted to the latter's failure to frame issues properly thereby causing claims of repatriation costs and the June 2019 salary not being resolved. Before we embark on merit deliberations on the matter, we are indebted to reproduce the remedies sought as it appear at page 5 of the record of appeal which is CMA Form No. I. They are; (i) Notice, (ii) Annual leave 2018/2019, (iii) Kiinua mgongo, (iv) Kipindi cha mkataba kilichobaki (36 months) (v) repatriation cost and (vi) Mshahara wa Juni 2019\ The corresponding issues framed appear at page 90 of the record of appeal. We do so while mindful of the settled law that issues are framed from the pleadings. A court of law has uncompromised duty to decide on each and every issue presented before it, as its failure renders the resultant decision inconsequential. See-Alisum Properties Limited v. Safum Setenda Msangi (Civil Appeal 39 of 2018) [2022] TZCA 389. At least the Arbitrator in the present case had a duty to solely frame such a number of the ii seemingly triable issues, together with the said three, as rightly argued by Mr. Kahwa. The rule of pleadings, just as it is also a settled law, requires that, issues are framed from the pleadings. Notably, read from the long list of reliefs sought in CMA Form No. 1, at page 5 of the record of appeal, the central questions placed before the Arbitrator for his determination were free of any ambiguity. They appear at pages 90, 101 and 102 of the record of appeal, mainly; whether retrenchment of the respondent was substantial and procedurally fair, and, commonly, reliefs the parties are entitled to. However, our scrutiny of the record reveals that, the questions pointed out above could not canvass all the claims presented by the respondent for better determination of the dispute as noted above. Fortunately, the respondent, in his testimony before the CMA reiterated some of the claims, as appearing at pages 94 to 95 of the record of appeal. Unfortunately, the Arbitrator still confined himself to the claim on fairness or otherwise of the retrenchment, which he found in favour of the respondent. Therefore, failure to deliberate and decide on the rest of the claims, frankly, was but an abdication of the Arbitrator's statutory duty. While it is true that termination may have, in appropriate circumstances, justify denial of certain reliefs sought, such a denial must nevertheless be articulated and reasoned. 12 Put in other words, a blanket dismissal of claims, without demonstrating how each specific prayer was disposed of, as is in this case, was unfortunate and improper. It fell short of the required standard, suggesting, more or less arbitrariness on the part of the Arbitrator. It follows, therefore, after conclusion that the retrenchment was lawful, the Arbitrator was still duty bound to interrogate each of the respondent's specific claims on its own merit. It required an examination of whether the factual and legal basis for each relief had been established and be granted, and, if not, to give reasons for the rejection. It is insisted that, the mere declaration that the termination of the respondent's employment was fair did not automatically extinguish the other and auxiliary claims, as is suggested quietly by Mr. Emmanuel. We are therefore unable to agree with the learned appellant's counsel that, the Arbitrator acted properly for sticking onto the three issues in total exclusion of the six claims presented. It is so, considering the arbitrator was solely duty bound to identify and frame issues, as observed above. It is very unfortunate and fatal that even when the respondent, in his testimony reiterated the claims of repatriation cost and June 2019 unpaid salary, still the Arbitrator turned a blind eye to it, taking no issue. Even in absence of some formally framed issues, the Arbitrator's inaction, no doubt undermined yet another long-established legal principle. That, to arrive at a just decision 13 a court has to act on any new issue raised later, at a hearing stage, provided that the parties are afforded a hearing, in the interest of justice. Therefore, the learned Judge was justified to remit the record to the CMA for proper determination of the dispute before another competent Arbitrator. That said, the two grounds are successful. In consequence, the appeal is hereby allowed. We make no order as to costs. DATED at DODOMA this 2n d day of June, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Judgment delivered this 2n d day of June, 2026 in the presence of Mr. Emmanuel Ndanu, learned counsel for the appellant and Mr. David Kahwa, learned counsel for the respondent via Teleconferencing and Mr. Nelson Novati, the Court Clerk present in Court, is hereby certified as a true copy 14