Mkombozi Commercial Bank vs Oswald Leslie Mpangala (Civil Appeal No. 2080 of 2025) [2026] TZCA 582 (15 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: KEREFU. 3.A.. MWAMPASHI.. J.A And ISMAIL, J.Ai) CIVIL APPEAL NO. 2080 OF 2025 MKOMBOZI COMMERCIAL BANK...............................................APPELLANT VERSUS OSWALD LESLIE MPANGALA................................................. RESPONDENT [Appeal from the Decision of the High Court of Tanzania (Labour Division) at Dar es Salaam] fMaanqa, 3,) dated 26th day of August, 2024 in Labour Revision No. 9815 of 2024 JUDGMENT OF THE COURT 13th April & 15th May, 2026 MWAMPASHI, 3.A.: This is an appeal by Mkombozi Commercial Bank, the appellant herein, against the decision of the High Court of Tanzania (Labour Division) at Dar es Salaam (Mganga, J.) dated 26.08.2024 in Labour Revision No. 9815 of 2024. In the said decision, the proceedings and award of the Commission for Mediation and Arbitration for Dar es Salaam (the CMA) dated 30.04.2024, in Labour Dispute No. CMA/DSM/ILA/307/2023/174/2023, were nullified on account that, they emanated from a defective and incompetent CMA Form No. 1 (CMA FI). For purposes of this decision and in consideration of the nature of the ultimate verdict we intend to make, the following brief facts, as obtained from the record of appeal, suffices. Oswald Leslie Mpangala, the respondent herein, was on 26.07.2016, employed by the appellant in the position of Legal Counsel. Later, on 01.11.2017, he was promoted to the position of Legal Services Manager. Thereafter, in January, 2023, one Dickson Majaliwa was employed by the appellant in the position of Legal Services Manager, the same position the respondent was holding. Subsequently, the respondent was relocated to the Risk and Compliance Department as a Compliance Manager. The relocation disgruntled the respondent. He felt that the relocation to a completely new field was intended to frustrate him and make his working environment intolerable. He eventually resigned and referred the matter to the CMA claiming that, his employment contract with the appellant has been constructively terminated. Having heard the evidence from both parties, the CMA found that, the respondent had failed to prove his claim. Consequently, the matter was accordingly dismissed. Discontented, the respondent applied for the revision of the CMA award to the High which, as we have alluded to above, nullified the CMA's proceedings and award, hence the instant appeal. In view of the fact that, on revision, the High Court disposed of the application not on merit but on the basis of the manner the nature of the dispute, that is, constructive termination, was indicated in item 3 of the CMA FI as reflected at page 13 of the record of appeal, we find it apposite, for ease of reference, to reproduce at this very stage, the relevant part of the CMA FI as hereunder: 3. NA TURE OF THE DISPUTE Tick the correct box [ J Application/Interpretation/Implementation of any law or agreement relating to employment Negotiations about terms and conditions of employment [J Discrimination [J Termination of employment [J Organization rights [J Recognition as exclusive [J bargaining agent Disclosure of information O T o rt O Breach of contract [v) Others (please describe) Constructive Termination. .......... In support of his application for revision before the High Court, the respondent raised three grounds: 1. That, the Commission erred in law and facts by failing to consider issues raised during hearing hence reached at wrong decision. 2. That, the Commission erred in law and facts by failing to construe properly the contents o f all exhibits tendered by the applicant to prove that the respondent persistently created intolerable working conditions that led to the applicant's forced resignation and constructively termination o f the employment relationship mainly on two main complaints as per CMA FI, namely redundancy and unilateral change o f particulars and conditions thereof hence reached at wrong decision. 3. That, the Commission erred in law and facts by entertaining and considering extraneous matters that were neither the subjectmatter o f the dispute nor testified by the parties during hearing hence reached at wrong decision. According to the record of appeal at page 888, in the course of arguing the 1st ground, upon being probed by the High Court on whether in filling Item 3 of the CMA FI, the nature of his dispute, that is, constructive termination, was properly indicated therein by ticking in the appropriate box, the respondent conceded that, he ticked on the last box devised for other nature of disputes and not in the box intended for termination of employment. He also conceded that, CMA FI was not properly filled and was thus, defective rendering the proceedings and the award of the CMA a nullity. On his part, advocate Kulwa Shilemba, who represented the appellant, was of the same view with the respondent that, the CMA FI was defective because the respondent did not tick in the appropriate box intended for termination of employment. That notwithstanding, he however, was of the view that, since the parties were substantially heard before the CMA, the overriding objective principle could be applied by ignoring the infraction in Item 3 of the CMA FI. Nonetheless, after being probed by the High Court, he changed his stance and asserted that, under the circumstances, the principle could not be applied. Capitalising on the issue regarding the manner in which Item 3 of the CMA FI was filled, the High Court ruled out that; the CMA FI was defective because, though the dispute related to termination of employment, the respondent did not tick in the appropriate box designed for termination of employment, instead he ticked in the last box intended for other nature of disputes; that, since constructive termination is part of termination of employment, it was not correct for the respondent to tick in the last box indicating that, the cause of action was on other kind of disputes; that, since CMA FI was defective, it was as if the respondent had not filed any dispute at the CMA and also that, the overriding objective principle could not apply under the circumstances where the proceedings are nullity. For the above reasons, as we have also alluded to earlier, the CMA proceedings were nullified and its award was quashed, hence the instant appeal. In this appeal, the High Court decision is being faulted on two grounds of appeal as hereunder: 1. That, the High Court erred in iaw in holding that failure by the respondent to tick the termination box in the Commission and Arbitration Form No. 1 whereas he had indicated in the same Form thathe was constructively terminated rendered the proceedings at the Commission and the award made thereofa nullity. 2. That, the High Court erred in iaw in failing to decide the dispute on the basis o f the grounds of revision set out in the pleadings filed by the parties. At the hearing of the appeal, while the appellant was represented by Mr. Leonard Masatu, learned advocate, the respondent appeared in person and fended for himself. Ahead of the hearing of the appeal and in terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, the parties had filed written submissions for and against the appeal. At the hearing, the submissions were adopted to form part of brief oral submissions made in support of and against the appeal. Upon taking the floor, Mr. Masatu argued the two grounds of appeal conjointly. He submitted that, CMA FI is a referral Form by which labour disputes are referred to the CMA for arbitration and wherein, under Item 3 of the said Form, the nature of the dispute has to be identified by ticking in the appropriate box. It was further submitted that, under rule 24 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007 (the Guidelines), each party is required to file a concise opening statement containing, among other things, a statement of the issue in dispute and a brief outline of the dispute. Mr. Masatu also submitted that, according to section 89 (4)(b) of the Employment and Labour Relations Act [Cap.366 r .E. 2023] (the ELRA), the CMA is required to deal with the merit of disputes without being tied up with technicalities. In view of the above requirements of the law, it was argued by Mr. Masatu that, though the respondent did not tick in the box intended for termination of employment, but he ticked on the last box designed for other type of disputes not listed therein and he clearly inscribed thereat the nature of his dispute, that is, constructive termination, the purpose of Item 3 of the CMA FI was served. It was also argued that, in the respondent's opening statement, constructive termination being the issue in dispute was repeatedly stated. Mr. Masatu concluded by submitting that, had the High Court considered that, the nature of the dispute was stated in the CMA FI and was outlined in the respondent's opening statement and also that, in labour disputes the substantial merit of disputes is required to be dealt with minimal legal formalities and technicalities, it would not have held that, the CMA FI was defective to the extent of rendering the proceedings and award a nullity. To buttress the point, he referred us to the decision of the Court in Tanzania Distillers Limited v. Bennetson Mishosho [2022] TZCA 838, where it was stated that, the CMA is requited to determine disputes fairly, expeditiously and substantially with the minimum of legal formalities. He thus, implored upon us to allow the appeal and remit the matter to the High Court for the application for revision to be determined on its merits. As we have alluded to earlier, in response to the submissions made in support of the appeal, the respondent filed written submissions in reply and at the hearing of the appeal, the respondent stood by the same. However, having gone through the said 21-page written submissions, we have noted that, to the greater part, the submissions are on matters not relevant to the issue in question. In the said submissions, the respondent has traversed beyond the issue as to whether the CMA FI was defective so much so that it rendered the dispute before the CMA incompetent and the proceedings together with the award a nullity. Regardless of the state of the respondent's written submissions in reply, as pointed out above, having sieved through the same and from the brief oral submissions made by the respondent, it is apparent that, the respondent is in support of the High Court. Regarding the 1st ground of appeal, it was submitted that, the High Court did not err in holding that the CMA FI was defective rendering the proceedings and award of the CMA a nullity. The respondent submitted further that, since, as correctly held by the High Court, constructive termination is part of termination of employment, the respondent was supposed to tick in the box intended for termination of employment and not in the last box devised for other nature of disputes. It was insisted that, since in labour disputes, the CMA FI is like a plaint in other civil litigations, the respondent was required to properly fill the Form by ticking in the appropriate and relevant box. Responding to the 2n d ground of appeal, the respondent contended that, the High Court properly refrained from determining the grounds raised in support of the application for revision because they emanated from the nullity CMA proceedings. He thus, prayed for the appeal to be dismissed. The issue for our determination, as intimated above, is simply whether the CMA FI was defective rendering not only the dispute before the CMA incompetent but also the proceedings and award a nullity. It is common ground that, according to section 86 (1) of the ELRA, every labour dispute referred to the CMA is required to be in the prescribed Form. The Form referred to under section 86 (1) is CMA FI set out in the Third Schedule to the Employment and Labour Relations (General) Regulations, 2007; GN. No. 45 of 2017 (the Regulations). The CMA FI contains a number of items all geared towards requiring the claimant to fill in a variety of information and particulars in clarification of his claim. See- Orien Tabora Hotel v. Savourgnan William Sasoma & Others [2025] TZCA 664. In labour disputes, the CMA FI is thus, equivalent to a plaint in normal civil litigations. It contains pleadings upon which the claimant's case is based. Among other things, under item 3 of the CMA FI, it is not only the nature of the dispute being referred to the CMA which is stated therein but the cause of action is also specifically defined. For purposes of assisting the claimant and simplifying the process of filling the CMA FI, Item 3 of CMA FI lists down a number of categories of disputes which are anticipated to be referred to the CMA by which the 10 claimant is required to simply tick in the box corresponding to the nature of the dispute he wants to refer to the CMA. Considering the fact that, the list of the kind of disputes listed under Item 3 of the CMA FI is not exhaustive, the last box was put therein and reserved for any other nature or category of disputes which claimants might wish to refer to the CMA. In the matter at hand and as demonstrated earlier, the respondent, in his endeavour to comply with the requirement of Item 3 of the CMA FI and undoubtedly, after finding that, constructive termination on which his claim was based, is not among the categories of disputes specifically listed under Item 3, opted to tick in the last box designed for other kind of disputes. Not only that, he also described thereat nature of the dispute as Constructive Termination. In consideration of the above facts, the question arising is whether the indication of the nature of the respondent's dispute in that manner, did not serve the purpose of Item 3 of CMA FI. Our answer to the above posed question is in the negative. By ticking in the last box designed for other kind of disputes and by clearly describing therein that the nature of his dispute is Constructive Termination, the purpose of Item 3 of CMA FI which is the identification of the nature of dispute being referred to the CMA, was served. Further, as rightly argued by Mr. Masatu, in the respondent's opening statement, l i appearing at page 17 of the record of appeal, it is repeatedly stated that, the dispute is on constructive termination. Even the hearing conducted by the arbitrator proceeded in the premises on the constructive termination as an issue. Again, in the CMA award, as reflected at page 730 of the record of appeal, the main issue for determination was on constructive termination. Under the circumstances, it is our considered view that, the CMA FI was not defective as the nature of the dispute was clearly stated in Item 3 of the Form. Further, the fact that the nature of the dispute was constructive termination was well known not only to the parties but also to the arbitrator. We also agree with Mr. Masatu that, this was a fit case for the High Court to have observed section 88 (4)(b) of the ELRA and the overriding objective principle for striving to achieve substantial justice rather than being tied up with formalities and technicalities. The High Court ought to have disregarded the alleged defect of the CMA FI and it ought to have proceeded with the determination of the merits of the application for revision. All in all, the appeal is meritorious and it is hereby allowed. The record is remitted back to the High Court for the application for revision in Labour Revision No. 9815 of 2024 to be determined on merit based on 12 the submissions made by the parties for and against the application on 05.08.2024. The matter be placed before any other High Court Judge of competent jurisdiction. Given the fact that this a labour matter, we make no order as to costs. DATED at DODOMA this 15th day of May, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered Virtually this 15th day of May, 2026 in the presence of Ms. Anna Timba, learned counsel for the appellant, respondent in person and Mr. Shafii Kassim, Court Clerk; Court is hereby certified as a true copy of the original. . H n liW lX ' A. S. ChlllGULU DEPUTY REGISTRAR COURT OF APPEAL