Ngorongoro Conservation Area Authority vs Azimio Mawole (Civil Appeal No. 835 of 2025) [2026] TZCA 613 (1 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: FIKIRINI. J.A., RUMANYIKA, 3.A. And ISSA, J.A.) CIVIL APPEAL NO. 835 OF 2025 NGORONGORO CONSERVATION AREA AUTHORITY......................................................................APPELLANT VERSUS AZIMIO MAWOLE................................................................. RESPONDENT (Appeal from the Judgment and decree of the High Court of Tanzania at Arusha) (Ndumbaro, J.l dated the 12th day of June, 2024 in Application for Revision No. 78 of 2022 JUDGMENT OF THE COURT 30th April & 1st June, 2026 RUMANYIKA. 3.A.: The present dispute originates from a long-standing employment relationship between Ngorongoro Conservation Area Authority (NCAA) and the respondent, Mr. Azimio Mawole. The respondent had served NCCA for about three decades, with effect from 1s t January 1990 till when he was terminated in the capacity of a Senior Assistant Accountant. On 28th April 2017 the appellant found the respondent allegedly to have committed serious misconduct, namely forgery of a Certificate of Secondary Education. The appellant challenged the i termination before the Commission for Mediation and Arbitration (CMA) on the procedure for being flawed, thus, unfairness in termination of the employment. The respondent alleged to have not been accorded a fair hearing, in violation of the principles of natural justice. Upon hearing the dispute, the CMA found in favour of the respondent, holding that the termination was substantively and procedurally unfair. It ordered for reinstatement of the respondent together with full back pay of terminal benefits. Dissatisfied with the outcome, NCAA sought revisional orders of the High Court on three main grounds; one, that the CMA lacked jurisdiction for non-compliance of section 32A of the Public Service Act, two, that, the respondent had failed to exhaust internal remedies, and three, that the CMA wrongly discounted the documentary evidence, copy of the contested academic certificate. In its judgment delivered on 12th June 2024, the High Court (Ndumbaro, J.) overruled the jurisdictional objection holding that, being a body corporate established under the statute, the appellant was not a public service office contemplated under the Public Service Act then. Also, it was ruled that, the amendments relied upon could not operate retrospectively to defeat jurisdiction already properly exercised in 2018. For the complaint on exclusion of the said documentary evidence, the High Court is faulted for having blessed the CMA which refused admission of the respective copy of the respondent's certificate of secondary education though a valid notice to produce had been served. To the learned Judge, the error was fundamental infringing the parties' right to be heard. Consequently, the proceedings of the CMA were quashed and the matter remitted back for a fresh and proper determination. Aggrieved, the appellant has filed this appeal on two grounds, paraphrased as follows: One, the High Court erred in law in holding that the CMA had jurisdiction and two, the High Court erred in law in holding that the appellant is not a Government entity, therefore provisions of section 32A of the Public Service Act (PSA) could not be applied. Representing the appellant, were Messrs. Masunga Kamihanda and Ayoub Sanga, learned Senior State Attorneys who teamed up with Ms. Christabella Madembwe and Mr. Nicodemus Agweyo, learned State Attorneys. The respondent had the services of Mr. Asubuhi Yoyo, learned counsel. Upon taking the floor, Mr. Kamihanda adopted the appellant's written submission filed on 27/06/2025 as part of his oral submission. He faulted the learned Judge for the holding that, at the time of filing the dispute in the CMA, the NCAA was not a government entity for her employees to qualify as public servants, in tine with section 4 of The Ngorongoro Conservation Area Authority Act. That, based on the foregoing, upon termination of respondent's employment contract on 19/03/2018, the respondent should have exhausted internal remedies, by approaching the Public Service Commission (PSC), in terms of section 32A of the PSA of 18/11/2016. Therefore, it was asserted, the issue of retrospectivity should not have been raised in the circumstances of the case. In effect, Mr. Kamihanda contended that, the CMA had no requisite jurisdiction to entertain the labour dispute instituted by the respondent who was a Public Servant, contrary to the findings of learned Judge. Mr. Kamihanda cited three authorities including the Court's decision in Tanzania Posts Corporations v. Dominic A. Kalangi (Civil Appeal No. 12 of 2022) [2022] TZCA 154 to fortify his proposition that, the mishap vitiates the proceedings including those of the High Court. We were implored to allow the first ground of appeal. As regards the second ground of appeal on whether the appellant was Government entity, Mr. Kamihanda was of the view that it was. He referred us to the respective provisions of section 4(1) of the Ngorongoro Conservation Area Act. That, from the inception, the government of Tanzania wholly owned and controlled the day-to-day running of the appellant. Board of Directors being appointed by the President of the United Republic of Tanzania (the President). On that account, Mr. Kamihanda argued, the appellants' employees automatically are Public Servants, whose labour disputes against employer are governed by section 32A of the PSA. He cited our decisions in William Mhame & Others v. TAZARA (Civil Appeal No. 280 of 2022) [2025] TZCA 427 and Tanzania Posts Corporations (supra) to reinforce his contention, that the CMA had no jurisdiction as the respondent had not exhausted internal remedies. Upon taking over from Mr. Kamihanda, Mr. Sanga had little to say. While adopting his fellow's submission, he contended to hold that the appellant is a public corporation, but in the same breath concluding that the respondent is not a Public Servant governed by section 32A of the PSA (page 450 of the record of appeal), it was a serious contradiction and the learned Judge was in error. To bolster his point, he cited Justine Stephen Nandonde v. TPB Bank PLC (Civil Appeal No. 233 of 2021) [2025] TZCA 399 to support his point that, the CMA lacked jurisdiction to adjudicate upon the labour dispute. He implored us to allow the appeal, as to hold that the CMA had the jurisdiction and that the appellant was not government entity for the provisions of section 32A of the PSA to come into play, the learned Judge acted erroneously. Replying, Mr. Yoyo saw nothing upon which to fault the learned Judge. He contended that, in 2018 when the respondent instituted the dispute in the CMA, the appellant's status and applicability of section 32A of the PSA was not yet clear. That, it was not until 2021 when Public Corporation and Public Servant were defined, for provisions of section 32A of the PSA to be invoked. It was however argued that, not every public institution is a government entity. Additionally, Mr. Yoyo asserted that, as it stands, the law could not have any retrospective effects to cover the labour dispute then. For the second ground of appeal, Mr. Yoyo essentially reiterated his submission made on the first ground. Upon hearing the learned counsel's contentions and having scanned the record of appeal, two issues arise for our consideration and determination; One, whether the appellant was a Government entity for section 32A of the PSA to come into play and two, whether the CMA had jurisdiction to entertain the labour dispute. Notably, section 3 of the PSA defines "a public servant" as a person holding or acting in a public service office. The term "public service office" broadly means a paid public office in the United Republic of Tanzania charged with the formulation of Government policy and the delivery of public services. This is in exclusion of parliamentary offices, membership in boards or committees, judicial offices, the armies and so forth. This position is anchored in section 31(1) of PSA. That, employees of executive agencies and government institutions are governed by specific statutes establishing them. However, section 31(2) of the same Act makes mandatory that all public servants referred to under section 31, as is the respondent have to be governed by provisions of the PSA. Clearly, provisions of the cited section 32A obliged a public servant, as is the respondent first to exhaust his employer's internal dispute resolution mechanisms before invoking the ordinary external labour adjudicatory forum (CMA). Therefore, it is common ground, in our jurisdiction that employees of body corporates established by Acts of Parliament, particularly those substantially owned and or controlled by the Government, are public servants, in light of the PSA. Therefore, it cannot be said that the respondent is not one of those employees. Importantly, the position shown above is reinforced by section 4 of the Interpretation of Laws Act, Cap 1. It defines a "public officer" and a "public department" in broad terms, including any officer or body performing duties of a public nature, including those under public corporations, treating their employees as public servants. Invariably, there could be conflicting definitions of who is a public servant. However, the situation could be harmonized by borrowing leaf from section 4 of the Interpretation of Laws Act, as an independent statute of general application, as noted above. Therefore, the respondent was a public servant who ought to have first exhausted local remedies before approaching the CMA. It is stressed that, labour dispute resolution mechanisms within public corporation/government entities as is the appellant, are solely governed by section 32Aof the PSA. See-Tanzania Posts Corporation v. Salehe Komba & Another (Civil Appeal No. 128 of 2020) [2023] TZCA 17628, Tanzania Posts Corporations (supra) and Simon Josephat v. Dar es Salaam Water and Sewerage Corporation (Civil Appeal No 441 of 2021) TZCA [2024] TZCA 1095. Properly construed, the definition of a public servant served to broaden the scope of entities to which the Government Proceedings Act applies in litigation. Therefore, with respect the said amendments of 2016 did not alter the substantive framework of the PSA, as improperly alleged by Mr. Yoyo. Accordingly, the position has been once it is established, as is for the respondent that an employee is a public servant under the PSA, he cannot have any choice other than to exhaust the available internal remedies first under section 32A of that PSA. Whether the employer is not a government entity or parastatal is immaterial. We hold so for two main reasons; First, applicability of section 32A of the PSA does not take cognizance of any kind of technical classification of the employer as a "government entity". What counts most is only whether the Government has control owning its majority shares in the respective institution, which qualifies her employees to be public servants. Second, section 4 of Ngorongoro Conservation Area Authority Act, relied by the High Court to hold that the appellant is not a public corporation was respectfully unfortunate, as alluded to above. Therefore, we agree with Mr. Kamihanda, on a contention that the Written Laws (Miscellaneous Amendments) Act No. 1 of 2020 did not impact on section 32A of the PSA. Rather, it amended the Government Proceedings Act on sections 6 and 16, only in relation to procedural and representation aspects in litigation, where the Government and its institutions are involved. Luckily, section 26 of the Written Laws (Miscellaneous Amendments) (No.3) (Act, of 2016 also relied by the learned Judge, to which Mr. Yoyo did not take issue, has made our task easier. As defined, the term "Government" in an expansive manner includes; a public corporation, a parastatal organization and or a public company in which the Government is a majority shareholder. For the present case, the phrase: "...in which the Government is a majority sharehoider"\$ of our great concern, as key words. At least the shareholding by the government in the appellant institution is not disputed, as an essential criterion. Therefore, the respondent as a public servant had, in place, a recommendable internal dispute resolution mechanism. He was under a statutory obligation to have exhausted the internal remedies, as prescribed under section 32A of the PSA before invoking the jurisdiction of the CMA. Equally untenable and respectfully inconceivable, is Mr. Yoyo's contention that in 2018, the CMA properly entertained the labour dispute, much as the subsequently established legal framework to the contrary could not operate retrospectively to defeat the claim. The learned counsel cannot be right because the requirement under section 32A of the PSA came into force much earlier, vide the Written Laws (Miscellaneous Amendments) Act No. 13 of 2016. Therefore, the issue of retrospective effects of the law cannot arise under the circumstances. So is Mr. Yoyo's assertion that, the respondent had no option in 2018 other than to institute the dispute in the CMA straight away. With respect, the complaint is out of place and it is tame excuse. In other words, having instituted the labour dispute in the CMA, about two years ahead of the said amendments in 2018, in contravention of the law, the dispute was incurably bad for want of jurisdiction of the CMA to adjudicate upon it. 10 In addition, now that the appellant was a government entity discharging duties as a public corporation, its statutory framework, in that regard, under section 25(l)(b) and (c) of the PSA speaks by itself. It is so express that all disciplinary matters or labour disputes involving public servants exclusively are the domain of the Public Service Commission, whose decision is appealable to the President. See- Tanzania Posts Corporations (supra). From the discussion above, and upon scanning the record, we are satisfied that no efforts were ever made by the respondent to exhaust the internal remedies. His direct recourse to the CMA, therefore was improper, premature and contrary to the law. The CMA lacked jurisdiction, the flaw which no doubt vitiates the respective proceedings, necessitating the resultant decision to be ineffectual. We have so pronounced ourseives in a number of decisions such as in Tanzania Breweries Limited v. Anthony Nyingi (Civil Appeal No. 119 of 2024 [2015] TZCA 580. In other words, the purposes of section 32A of the PSA cannot be underestimated. There is a purpose for every designated dispute processing mechanism within the employers. Significantly, it is intended to conveniently relieve courts from the heavily pressing workload, a feature of ever-increasing socio-economic changes of the day. We are li afraid, if all disputes were to be instituted in ordinary courts of law, as quietly suggested or forum chosen at the litigants' leisure, then there would be no useful meaning for any legally recognized quasi -judicial body. In the upshot of it, the appeal is allowed to the extent demonstrated above. DATED at ARUSHA this 28th May, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Judgment delivered this 01s t day of June, 2026 via teleconferencing in the presence of Ms. Christabella Madembwe, learned State Attorney for the appellant and Mr. Mohamed Rashid Mbaruku, learned counsel for the respondent while Mr. Nelson Novati, Court Clerk appeared in person is hereby certified as a true copy of the original. Q * J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL 12