Mathew Nicholaus Msue & Another vs Bulyanhulu Gold Mine Limited (Civil Appeal No. 246 of 2023) [2026] TZCA 564 (14 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A., MASOUD. J.A. And MLACHA. J.A.T CIVIL APPEAL NO. 246 OF 2023 MATHEW NICHOLAUS MSUE ................................................... APPELLANT SHINJE JAMES SIMA............................................................. 2n d APPELLANT VERSUS BULYANHULU GOLD MINE LIMITED.......................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Shinyanga) (Mdemu, J.1 dated the 04th day of March, 2022 in Labour Revision No. 51 of 2020 JUDGMENT OF THE COURT 30th April & 14th May, 2026 MASOUD. J.A.: The appellants herein were employed by the respondent as a Boiler Maker and a Truck Operator from 24th December, 2008 and 26th November, 2008 respectively. They were however terminated from employment on 31s t January, 2019 by the said respondent on ground of labour-related incapacity arising from occupational diseases. The diseases were lumbar and cervical spondylosys with 60% permanent incapacity for the first appellant and L4/L5

disc prolapse with annular tear and muscle spasm for the second appellant. The diseases were confirmed by medical reports from Muhimbili Orthopaedic Institute (MOI) and the Occupational Safety and Health Authority (OSHA). Being aggrieved by the termination of their employment, the appellants separately instituted labour disputes before the Commission for Mediation and Arbitration (CMA). The disputes were eventually consolidated as Labour Dispute Nos. CMA/SHY/KHM/54 & 55/2019, alleging unfairness of termination both procedurally and substantively. After a full hearing, the CMA found that the reason for termination which was permanent incapacity was valid in view of the evidence on record. It however found that as to the procedure, there were some minor lapses. Consequently, the CMA awarded each of the appellants six months' salary remuneration as compensation for unfair termination. The CMA reasoned that since the termination was on a valid and fair reason with only minor procedural lapses, it was justified to award each of the appellants compensation of less than the minimum of twelve months. As the appellants had also claimed against the respondent for tortious liability, life insurance and medical benefits, the CMA was of the finding that it did not have jurisdiction to entertain them. It thus declined to adjudicate on them. 2

As they were not happy with the outcome of the CMA's decision, the appellants applied for revision before the High Court. In the end, the High Court upheld the CMA's decision in its entirety. With particular reference to the award of six months' salary remuneration as compensation, the court was in agreement with the reasoning and the finding of the CMA. It thus dismissed the revision. Still aggrieved, the appellants lodged the instant appeal in this Court. They raised a total of seven grounds which we will deal with them shortly. At the hearing of the appeal where the appellants appeared in person unrepresented and the respondent appeared through Mr. Faustin Anton Malongo and Ms. Caroline Lucas Kivuyo, learned advocates, rival written submissions which were earlier lodged were adopted with some elaborations in a number of aspects. The appellants brought to our attention, without any objection from the respondent's counsel, that they abandoned the first ground in lieu of a new one which they argued in those submissions and clarified on it with our leave. In addition, they notified the Court that they chose with our leave to abandon the tortious liability claim which was embedded in one of the grounds although they retained the complaint on medical benefits and life insurance.

In the course of elaborating the rival submissions, we engaged the appellants and counsel for the respondent on whether the grounds of appeal were indeed on points of law only and were not inviting the Court to re-open factual issues already determined by the lower courts. There was nothing of any substance from the appellants on that issue. However, as from the respondent's counsel's arguments, which we fully agree with, grounds 4 and 5 are all factual. They are, by their nature and substance, complaining about factual issues relating to failure of the High Court to find that occupational health experts did not recommend termination of the appellants, and relating to failure of the High Court to find that the appellants were on the evidence on record entitled to all statutory remedies for unfair termination. We are of the above view because, grounds 4 and 5, clearly seek to invite this Court to examine and evaluate the evidence adduced before the CMA in order to satisfy itself whether the Labour Court's findings in revision were correct. It is settled that such invitation to re-open the corresponding findings reached by the lower courts is not within the requirement of section 58 of the Labour Institutions Act, Cap. 300 (the LIA). We are, in this position, guided by our decision in CMA-CGM Tanzania Ltd v. Justine Baruti [2021] TZCA 256 in which we adopted in a labour dispute the definition of a point of law in tax matters as stated in the case of Atlas Copco Tanzania 4

Limited v. Commissioner General, Tanzania Revenue Authority [2020] TZCA 317. We thus forthwith dismiss those grounds. With the above outcome, the remaining grounds seem to us to raise points of law only. By way of paraphrasing and condensing them, they all boil down to the complaints that, first, there was no valid and fair reasons for the termination; second, the order of the High Court vacating its previous order of 18th June, 2021 condemned the appellants unheard; three, the six months' salary remuneration awarded as compensation to each of the appellants is contrary to the law; and four, it was wrong to hold that, the CMA had no jurisdiction to entertain medical treatment and life insurance claims. We chose to start with the fourth complaint followed by the second. On this, the main argument by the appellants was based on the import of section 88 (1) (b) (ii) and (iii) of the ELRA and section 51 of the LIA which, according to them, vest jurisdiction to the CMA and Labour Court on matters arising from employment relationship. They include tortious liability, breach of contract and vicarious liability, they argued. At the heart of their arguments, the appellants were saying that the CMA ought to have determined the claim for medical treatment and life insurance in their favour as it had jurisdiction to do so. 5

On the other hand, the respondent's learned counsel were of a different stance, arguing that whilst they do not dispute the import of the cited provisions above, they were of a firm view that the disputed claim which the CMA had no jurisdiction related to payment of medical and life insurance benefits involving a contract entered between the respondent and the respective insurance company for the benefit of the respondent's employees to which the appellants were not parties. In any case, they argued, the respondent was liable to provide medical cover during the subsistence of the employment and not otherwise. On our part, we think the above issue need not take much of our time. As long as the contract of employment was terminated, there was no basis for the claim for continued medical treatment as was very well decided by the learned Judge at page 673 of the record of appeal. We find no reason to fault him. As to workers compensation and life insurance, this has nothing to do with the CMA as was correctly determined by the learned Judge at page 674 of the same record when he said, whilst referring to section 14 (1) of the LIA that: "...under Workers' Compensation Act, Cap. 263 and Insurance Act, No. 10 o f 2009, insurance and workers' Compensation are outside the jurisdiction o f the CMA." Considering the rival submissions of the parties on the issue which we took into account in light of the finding by 6

the learned Judge, we find nothing that entitles us to fault him on his finding. The complaint fails and we right away dismiss it. As to the second complaint concerning the order of the High Court vacating its previous order as to the delivery of its decision in favour of an order requiring the parties to be heard orally on ground that the learned Judge could not comprehend the submissions of the appellants prepared by their personal representative as is evident at page 649 of the record of appeal, there were also competing arguments from both sides. The argument by the appellants is that what the learned Judge did which he raised suo motu whilst he was already functus officio amounted to condemning them unheard on the issue whether the submissions were clear and comprehensive enough to be understood and considered by the Court in its determination of the matter. On the other hand, the respondent's counsel argued in reply to the effect that the learned Judge is, under rule 17 (2) of the Labour Court Rules, 2007 GN No. 106 of 2007 (the LCR), vested with powers to regulate the procedure in any proceedings as he deems it fit. In the circumstances, the course taken by the learned Judge was justified because he could not, as he made it clear to the parties, understand the appellant's submissions and afford them fair hearing. For such reason, the learned judge cannot be 7

faulted it was argued. More so because, the parties were afterwards afforded an oral hearing which none of the parties is disputing. We have considered the above rival arguments in light of the provisions of rule 17 (2) of the LCR. We also took into account the justification given by the learned Judge as he made the order vacating the previous one at page 649 of the record in the presence of both parties, and the fact that both sides were afterwards afforded an opportunity to be heard orally. With such considerations, we find ourselves at one with the respondent's counsel. The argument that the learned Judge acted when he was already functus Officio and that the appellants were condemned unheard are both misplaced. We say so because, the course taken by the learned Judge was in fact in the presence of the both sides who were all duly represented. The complaint is outrightly dismissed as it is devoid of merit. We now turn to the ground of appeal which boils down to whether there was valid and fair reason for terminating the appellants. The issue arises from the ground on unfairness of the termination and the corresponding arguments that challenge the concurrent findings of the CMA and the High Court that there was fair reason for termination although the

procedure was partly unfair. Such findings are found at pages 368 to 372 and 668 to 673 of the record of appeal respectively. The appellants arguments on the unfairness of the termination are hinged on the alleged violation of rules 19 and 21 of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 (GN No. 42 of 2007) (the ELR Rules) by the respondent. Consistent with the foregoing, the appellants referred us to page 671 of the record of appeal where the learned Judge considered the evidence in the proceedings of the CMA, such as exhibit D3, as he arrived at the conclusion that although there was valid and fair reason to terminate the appellants, the procedure was not fully adhered to. Notwithstanding that the High Court's finding of facts as to the fairness of the reason for termination was consistent with the CMA's findings of facts, the appellants insisted that the finding was erroneous since the evidence on record shows that there was violation of rules 19 and 21 of the ELR Rules which would have the effect of invalidating the fairness of the reason and procedure. Apart from exhibit D3, we were also invited to consider exhibit D7 which constitutes minutes dated 19th January, 2019 and 14th January, 2019 of the Redeployment Committee Meetings at the respondent's 9

workplace as we considered the appropriateness of the findings relating to the fairness of the reason for the termination. Arguing against the above, the respondent's counsel supported the finding of the learned Judge which concurred with that of the CMA. They dismissed the submissions by the appellants as misplaced, arguing that contrary to the principle enunciated in Pangea Minerals Limited v. Joseph Mgalisha Bulabuza [2023] TZCA 17471, the appellant's submissions confused the prescribed criteria for determining fairness of the procedure with those applicable in determining the fairness of the reason which was in the circumstances not proper. Having so argued, they urged us to find the complaint meritless and dismiss it. We have considered the rival submissions and the manner in which they invite the Court to look at the evidence on record. It is evident that, the decision of the High Court on the fairness of the reason and that the procedure was partly followed was based on the evidence on record. As we earlier pointed out, the findings of facts by the High Court relating to the fairness of termination were also consistent with what was found by the CMA. The appellants' submissions by their very nature and substance invited us to fault the factual findings relating to the fairness of the reason for 10

termination without more. They neither relied on points of law only in their purport to fault the impugned findings nor did they show us any misdirection or misapprehension of the evidence or violation of procedure or law which would have entitled us to interfere with those factual findings by the two lower courts supporting the overall finding that the termination was on fair reason although the procedure was partly not followed. In the case of Qatar Airways vs Mafuli Hamadi Mfinanga [2025] TZCA 950, we held that: "Appeals to the Court from the decisions o f the Labour Court He on points o f law only. On that accountit is beyond the jurisdiction o f the Court to look at the evidence to find out whether the impugned decision is or is not correct. Consistent with the Court's decisions, amongst others, Bahari Oilfield Services EPZ Ltd v. Peter Wilson [2021] TZCA 250, assailing the findings o f fact by the Labour Court is contrary to the provisions of section 58 o f the Labour Institutions Act. In Ovadius Mwangamila & Others v. Tanzania Cigarette Company Limited [2025] TZCA 361, the Court reiterated that, although a challenge against the unfairness o f termination premised on section 37 (2) o f the ELRA is naturally one of law, it ceases to be so in situations where the Court is invited to examine and evaluate the evidence adduced before the CMA to satisfy li

itself whether the Labour Court's findings in revision were correct." In view of what we found above, we reject the invitation to re-open the factual findings by the High Court regarding fairness of the reason for termination and examining and evaluating the evidence adduced before the CMA to resolve the issue whether the court's finding of the fairness of reason was correct. If we allow ourselves to do so, we will be acting in contravention of section 58 of the LIA. Accordingly, we dismiss the ground of appeal challenging the findings of the High Court on the fairness of reason. We now turn to the last ground complaining about violation of section 40 (1) (c) of the ELRA. Reflecting on the competing arguments from both sides, it is clear that the contention is on whether the amount awarded to the appellants was contrary to the law. The issue is whether in the circumstances of this case, there was justification in awarding less than twelve months' salary remuneration as compensation for unfair termination on ground of procedural flaw. While the appellants invited the Court to consider factors which the High Court, in their view, did not consider as it wrongly exercised its discretion, the respondent's counsel's arguments were that, the law, as 12

judicially interpreted, entitled the court in appropriate circumstances to award compensation of less than 12 months' salary remuneration, citing among others, the case of Felician Rutwaza v. World Vision Tanzania [2021] TZCA 2. In addition, it was argued that, the appellants were in their submissions inviting the Court to consider factors which are not on record. To be clear, the appellants invited us to consider a number of factors. They included, the appellants' ill-healthy which led to termination of their employment; that the ill-health is work related; and that the appellants had prayed for 36 months' salary remuneration as compensation. As to their ill- health which is work related, they urged us to be guided by the case of Hussein Said Kayagila v. Bulyanhulu Gold Mine Limited [2023] TZCA 103. On our part, we are settled that, the provision of section 43 (1) (c) of ELRA as it was then which provided for payment of "compensation to the employee o f not less than twelve months' remuneration' is applicable in the instant appeal. We are also aware that in our previous decisions, and in particular, the case of Felician Rutwaza (supra), we have held in relation to the law as it was then in force that compensation for unfair termination of less than twelve months could be awarded in some circumstances. 13

In line with the above, the first issue is whether the circumstances of the case at hand involving unfair termination on ground of procedure which was partly followed as concurrently found by the High Court and the CMA justify the award of less than 12 months. And the second issue is whether the High Court in exercising its discretion in upholding the award of six months' salary remuneration acted on wrong principle. See for instance, Veneranda Maro & Another v. Arusha International Conference Centre [2022] TZCA 37 as to the exercise of discretion in awarding the statutory compensation. It is, however, in the case of Hussein Said Kayagila (supra), where in relation to occupational disease leading to termination of employment, and consideration of occupational disease in the exercise of the court's discretion in the circumstances involving termination on that reason, we stated that: "In the case under consideration , the appellant's contract o f service was terminated by reason o f ill-health which is more or less a case o f force majeure. What is more, is an axiomatic fact that, in the instant case, as the crow flies, the appellant's ill-health was attributable to the works assigned to him by his employers. It must therefore be obvious that the case o f Felician Rutwaza (supra) is materially distinguishable from the instant case by virtue 14

o f each case's peculiar facts. Indeed, one cannot seriously draw an analogy between , on one hand, the termination o f a contract o f employment due to misconducts by the employee and on another hand, termination due to the employee's ill-health. The foregoing fact is all the evidence anyone needs to appreciate that indeed, the appellant deserved much more than what was awarded to him. For the foregoing reasons, we find ourselves in agreement with Mr. Mushi that, indeed the two courts below strayed into error when they awarded the appellant compensation for unfair termination for a paltry six months' remuneration. We take the foregoing view irrespective o f the discretion given to the arbitrator in terms o f the earlier cited rules 32 (5) and 35 (b) and (f) o f the Rules. For, while we are live to the need for an appellate court like ours to always be reluctant to review the exercise o f discretion by trial courts, we feel obliged to observe as did Nathan Isaacs a British Educational psychologist (1895 - 1966) that, to say that a matter is one involving judicial discretion means no more than that judges should act thoughtfully ...... Having examined the record, and upon considering all the arguments and submissions, we are satisfied that the appellant's grievances were not misplaced. We entertain no doubt that, the fact that his contract o f service having been terminated because o f a condition of illness which was an occupational hazard directly linked to the 15

respondent's mining works, he deserved a much kinder compensation than what he was awarded. We accordingly allow the appeal and set aside the six months remuneration awarded to the appellant by the CMA and upheld by the first appellate court. In its stead, we award him compensation for unfair termination o f his contract o f service amounting to twenty (20) months' remuneration." Guided by the above authority, we revisited the reasoning of the High Court in awarding the six months' salary remuneration to each of the appellants. As submitted by the appellants, it is clear on record at pages 671 to 673 that the High Court just adopted the reasoning by the CMA which is found at page 376 without more. It is glaring that at pages 668 and 669 of the record of appeal the High Court was as was the CMA satisfied that the appellants' ill-health was attributable to the works assigned to them by their employer. It is however strange that neither the High Court nor the CMA considered that factor when it exercised its discretion in awarding six months' salary remuneration. In view of the above considerations, we are in agreement with the appellants that the CMA acted on wrong principle when it awarded each of the appellants compensation of six months' salary remuneration for unfair termination on procedural ground, which decision was erroneously upheld 16

by the High Court. We accordingly allow the relevant ground, set aside the six months' remuneration awarded to each of the appellants by the CMA and upheld by the High Court. As a result, we award each of the appellants 20 months' salary remuneration as compensation for unfair termination. For the reasons stated, we partly allow the appeal to the above extent relating to statutory compensation for unfair termination. Since the appeal emanates from a labour dispute, we make no order as to costs. DATED at TABORA this 13thday of May, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 14th day of May, 2026 in the presence of the Appellants who appeared in person, Ms. Caroline Lucas Kivuyo, learned counsel for the Respondent by virtual Court, and Ms. Rehema Peter hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL