Total Tanzania Limited vs Faustine Bankana (Civil Appeal No. 613 of 2023) [2026] TZCA 578 (15 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LEVIRA, 3.A.. MASHAKA. J.A. And NGWEMBE. J.A.^ CIVIL APPEAL NO. 613 OF 2023 TOTAL TANZANIA LIMITED.............................................APPELLANT VERSUS FAUSTINE BAN KAN A ................................................... RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Wambura. J.~ > dated the 20th day of March, 2020 in Labour Revision No. 938 of 2018 JUDGMENT OF THE COURT 20th April & 15th 2026 LEVIRA. J.A.: This appeal is against the decision of the High Court of Tanzania, Labour Division (the Labour Court) at Dar es Salaam in Labour Revision No. 938 of 2018. The parties herein were the employer and employee, respectively. The respondent was employed by the appellant as Lubricant Supervisor from July, 2007. However, he was terminated in early 2016 on allegations of gross negligence and financial loss. Following his termination, the respondent was dissatisfied. He referred the dispute to the Commission for Mediation and Arbitration (the CMA) claiming to be unfairly terminated. The CMA found in his favour an act which aggrieved the appellant. As a result, the appellant sought the CMA award to be revised by the Labour Court in Labour Revision No. 938 of 2018, subject of the present appeal. The appellant has approached the Court armed with three grounds of appeal as follows: 1. Whereas the testimony o f PW1 was taken under oath ; the testimonies o f DW1 (page 235 o f the record) and DW2 (page 251 o f the record) were not taken under oath contrary to the law. 2. The learned High Court Judge erred in law in holding that the termination o f the respondent was substantially unfair. 3. The damages awarded to the respondent were excessive given the circumstances o f the case. At the hearing of the appeal, the appellant was represented by Dr. Onesmo Kyauke, learned advocate, whereas the respondent had the services of Dr. Jacktone Koyugi, also learned advocate. Upon taking the floor, Dr. Kyauke abandoned the second and third grounds of appeal. Submitting in respect of the first ground of appeal, he stated that, it is apparent on record that the evidence of PW1 found at page 255 of the record of appeal was taken under oath. On the contrary, the evidence of DW1 and DW2 at pages 235 and 251 of the record of appeal respectively, was not taken under oath contrary to the law. He submitted further that, the Court has repeatedly emphasized that every witness must take oath or affirmation before giving his evidence at the trial court, otherwise his evidence will be without value. He fortified his argument with the decision of the Court in Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020 [[2020] TZCA 1890 (11 December 2020) where, while dealing with an akin situation, it cited Rule 25 (1) of GN. 67 of 2007 and section 4 (a) and (b) of the Oaths and Declarations Act, Cap 34 R.E. 2023, which make oath or affirmation a mandatory requirement. The Court held that the omission to take oath vitiates proceedings and ordered the matter to be heard de novo. Dr. Kyauke implored the Court to nullify the evidence of those two witnesses and order for a retrial. In reply, Dr. Koyugi conceded to the first ground of appeal and concurred with the submission by Dr. Kyauke. He prayed for 3 the matter at hand to be remitted back to the CMA for a retrial before another arbitrator. Following concession by Dr. Koyugi, there was no rejoinder from Dr. Kyauke regarding the position of law stated earlier. Having considered the submissions by the parties on the first ground of appeal and perusing the record of appeal, the issue as to whether the evidence of DW1 and DW2 was recorded without oath or affirmation need not detain us much. The law requires the evidence of every competent witness to be taken upon oath or affirmation; see: section 4 of the Oaths and Statutory Declaration Act, Cap 34. The record of appeal speaks louder and clear that the testimonies of the above named witnesses (DW1 and DW2) were recorded without oath or affirmation. We shall let the record speak for itself. At page 235 of the record of appeal, it was recorded as hereunder: "Particulars ofD W l Jina Winston Fautker Umri 39 Tribe Nationality Sierra Leone Religion Christian Occupation Operation Manager TOTAL Residence Masaki" Also, at page 251 of the record of appeal, the particulars of DW2 were taken before recording his testimony as follows: PARTICULARS OF DW2 Jina Mosha Msuya KHewo Umri 34 Kabila Mpare Dini Mkristo Kazi Director o f CorporateAffairs and Legal Makazi Mikocheni It can be observed from the excerpts above that the arbitrator was mindful to ask DW1 and DW2 their religions, but having got answers did not go a step further to exercise his power to administer oath to them or accept affirmation in terms of Rule 19 of GN. 67 of 2007 before recording their testimonies. As submitted by the learned counsel, failure to take oath or affirmation contravenes the law. For the purpose of the matter at hand, the contravention is against Rule 25 (1) of the Labour Institutions (Mediation and Arbitration) Guidelines, GN. 67 of 2007, which reads: 5 "The parties shall attempt to prove their respective cases through evidence and witnesses shall testify under oath..." The above provision is couched in a mandatory term signifying that, the arbitrator has no option but to administer oath or accept affirmation of witnesses before taking evidence. This gives assurance that the witness will speak the truth and not otherwise; hence, reliable evidence. It is settled position that failure to take oath or affirmation is a fatal irregularity with effect of vitiating the proceedings; see for instance: Attu J. Myna v. Cfao Motors Tanzania Limited (Civil Appeal No. 269 of 2021) [2022] TZCA 187 (5 April 2022). In the present case, crucial as it was, the evidence of both DW1 and DW2 was taken without oath or affirmation as intimated earlier. As a result, it suffers the same consequences. We, therefore, allow the appeal on ground that the evidence of DW1 and DW2 was wrongly recorded without making oath or affirmation, admitted and relied upon by the CMA and the Labour Court. Consequently, we nullify the proceedings of the CMA in respect of the evidence of DW1 and DW2 and the resultant award. We as well, proceed to nullify the proceedings of the Labour Court in Revision No. 938 of 2018 and order that Labour Dispute No. CMA/DSM/KIN/R. 169/16/464 be remitted to the CMA for re hearing of the testimonies of DW1 and DW2 before the same arbitrator in accordance with the law and compose an award. Alternatively, if procurement of the same arbitrator will be impracticable, we order re-hearing of the evidence of those witnesses and composition of the award to be done by another arbitrator. DATED at DAR ES SALAAM this 13th day of May, 2026. M. C. LEVIRA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 15th day of May, 2026 in the presence of Ms. Hamisa Nkya, learned counsel for the Appellant, also holding brief for Dr. Koyugi, learned counsel for the Respondent and Ms. Janekissa Bukuku, Court clerk, is hereby certified as a true copy of the original.