North Mara Gold Mine Limited vs Isaac Sultan (Civil Appeal No. 548 of 2023) [2026] TZCA 565 (14 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ( CORAM: LILA, 3.A.. MASOUD. 3.A. And MLACHA, J.A.^ CIVIL APPEAL NO. 548 OF 2023 NORTH MARA GOLD MINE LIMITED.........................................APPELLANT VERSUS ISAAC SULTAN ..................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (Labour Division), at Musoma) (Mahimbali, J.) dated the 3r d day of June, 2022 in Labour Revision Application No. 16 & 17 of 2018 JUDGMENT OF THE COURT 27thApril & l4 h May, 2026 MLACHA. 3.A.: The respondent, Isaac Sultan, was employed by the appellant, North Mara Gold Mines Limited, on 04.04.2013 as an Environmental Coordinator. He was also the branch Chairman of the NUMET (National Union of Mines and Energy Workers Tanzania) at African Barrick Gold Mine. His employment was terminated on 26.07.2017 accused of dishonesty involving theft, fraud and corruption contrary to ACACIA Disciplinary Code of Conduct. He filed a dispute at the Commission for Mediation and Arbitration (the CMA) at Musoma in CMA/MUS/144/2017.

The CMA found the termination procedurally fair but substantively unfair for want of valid reasons for termination. It awarded compensation of 48 months' salary under section 40(l)(c) of the Employment and Labour Relations Act, 2004 (the ELRA). Both parties were aggrieved and filed revision applications before the High Court Labour Division at Musoma. The High Court enhanced the compensation to 90 months' salary. On appeal to this Court in Civil Appeal No. 458 of 2020, that decision was nullified on the ground that the High Court had determined matters which were not properly canvassed by the parties. The matter was remitted to the High Court for retrial. Upon retrial, the High Court upheld the findings of the CMA that the termination was procedurally fair but substantively unfair. It enhanced the compensation to 84 months' salary with 7% interest prompting the appeal now before the Court. To understand the appeal and deliberations which will follow, the background facts are reproduced albeit briefly, as follows. Sometimes in December 2016, the Independent Television (the ITV) reported food safety issues of the North Mara Gold Mine involving a company by the name of AKO Catering Services. The respondent who was the NUMET Chairman by then, issued a memo dated 06.12.2016 directing workers to stop eating meat and fish products from AKO Catering Services pending investigations by TFDA and other authorities. This action caused unrest at

the workplace followed by allegations that the respondent had been bribed by representatives of NICE Catering Services (George King and Mwita Bhoke) to incite unrest at the workplace and sabotage AKO Catering Services who were supplying food services at the mine and facilitate the award of a catering tender to NICE catering Services. The respondent was suspended on 22.03.2017 pending investigations. He was later sent to the disciplinary committee charged as follows: " Charge sheet Name o f accused: Environmental Coordinator Department: HSE ID No: 28409 COUNT 1 Dishonest, theft and fraud; offering or taking bribe contrary to Rule 3.8 o fACACIA Disciplinary Code. PARTICULARS OF BREACH That in different occasions in the month o f December 2016 and January 2017 you have demand (sic) and receive (sic) TZS 20M from George King in cash and 10M deposited by Mwita Bhoke to your account as a payment from Nice Company for you and fellow Union leaders to cause unrest situation at mine site and make a

move to remove AKO catering from providing service to North Mara Gold Mine Ltd. COUNT 2 Breach o f Code o f Conduct, corruption and bribery: - corruption through misuse o f entrusted power for private gain contrary to Rule 1.6.1 of the ACACIA Disciplinary Code. PARTICULARS OF BREACH That in different occasion in the month of December 2016 and January 2017 you have demand (sic) and receive (sic) TZS 10M from George King in cash and 10M deposited by Mwita Bhoke to your account as a payment from nice company for you and your fellow Union leaders to cause unrest situation at mine site and make a move to remove AKO catering from providing services to North Gold Mine Ltd. COUNT3 Breach o f code o fconduct, corruption and bribery; corruption through misuse o f entrusted power for private gain contrary to Rule 1.6.1 o f the CACCIA Disciplinary Code. PARTICULARS OF BREACH That in January 2017 you have demanded TZS 50M (50% o f TZS 100M) from George King as a

payment from Nice Catering Service from providing service to North Mara Mine Ltd and to facilitate tender process for Nice Catering Service Company." The disciplinary committee convicted him and recommended his termination. His appeal to the management was dismissed. He filed a labour dispute at the CMA which found that his termination was unfair substantively and ordered payment of compensation of 48 months' salary. Both parties were aggrieved leading to the filing of Revision Applications Nos. 16 and 17 of 2018 at the High Court. The High Court awarded compensation of 90 months' salary under section 40(l)(c) of the Employment and Labour Relations Act. The appellant challenged the decision before the Court successfully which nullified and set aside the decision of the High Court as intimated above. It ordered retrial which was complied with. In compliance with the directive of the Court, the High heard the revisions and ordered payment of compensation of 84 months' salary with 7% interest to the respondent as intimated above. Dissatisfied, the appellant has lodged this appeal with five grounds as follows:

1. The Honourable Judge erred in law for holding that the standard o f proving the allegations against the respondent is proof beyond reasonable doubt

2. The Honourable Judge erred in law by holding that the appellant did not prove the offences that led to the termination of the respondent's employment.

3. The Honourable Judge erred in law in awarding the respondent excessive compensation o f 84 months' salaries withoutjustifiable reasons.

4. The Honourable Judge erred in law in not reversing the compensation awarded by the CMA.

5. The Honourable Judge erred in law by awarding interest on the awarded amount When the appeal was called on for hearing the appellant was represented by Mr. Faustine Anton Malongo and Ms. Caroline Lucas Kivuyo, learned advocates, whereas the respondent was represented by Mr. Alhaj Abubakar Majogoro and Mr. Ernest Alfred Mhagama also learned advocates. When Ms. Kivuyo was invited to address the Court on the above grounds, she adopted their written submissions earlier on filed in terms of rule 106 (1) of the Tanzania Court of Appeal Rules 2009 (the Rules) and made a short submission to amplify the submissions. Addressing the Court on ground 1, she submitted that, the learned Judge misdirected

himself in raising the standard of proof above what was required in a civil case. Making reference to page 466 of the record of appeal, she submitted that the learned Judge was in error when he demanded a proof beyond reasonable doubt. He also misdirected himself when he demanded that there was need to report the matter to the Prevention and Combating of Corruption Bureau (the PCCB) for investigation to aid establishing the proof. She contended that the approach of the learned Judge was not backed by the law because employment cases being civil cases by nature demanded a lower standard of proof under section 3 (2) of the Evidence Act which is proof on the balance of preponderance. She contended further that, it is this high standard of proof which led the High Court to find that the disciplinary offences were not proved. She urged the Court to vacate the decision of the High Court and allow the appeal. When she was probed by the Court as to the way forward, she urged the Court to return the matter to the High Court to be heard afresh and be decided according to the standard used in civil cases. When Mr. Majogoro was invited to make a reply on the above submission, he adopted the written reply submissions earlier on filed in terms of rule 106 (7) of the Rules and had a short submission to make. He conceded that the learned Judge invited the standard ordinarily used in criminal cases at page 466 of the record appeal but hastened to say

that the appeal was not decided at that standard. He also admitted that the learned Judge raised the issue of PCCB investigation suo mottu without calling the parties to air their views on it. He also admitted that it is not in the pleadings. Neither was it in the grounds of appeal before the court. That notwithstanding, he argued that this did not affect him in making the decision as such should be disregarded by the Court. He urged the Court to dismiss the complaint. We have considered the submissions of the learned advocates and examined the record of appeal. The issue before us is whether the learned Judge applied the correct standard of proof in deciding the appeal. The contention of the appellant which is disputed by the respondent is that the learned Judge invited and applied a higher standard of proof in deciding the appeal giving an erroneous decision. That in effect means that, if he had used the correct standard of proof which is ordinarily used in civil cases, labour disputes inclusive, he could arrive at a different finding and decision. This calls for an examination of the relevant part of the judgement of the High Court which starts from page 463 through to page 466 of the record of appeal. The learned Judge had this to say at page 463:

"/4 careful reading o f the alleged charges preferred against the appellant, it is obvious that the applicant was charged with a total o f five offences, namely; corruption, bribery, theft, fraud and dishonest though all were compounded into three main offences. The allegation has been that the applicant has received money bribe from the NICE Catering Services so as to get favour in tender process against AKO who was by then the providing catering services at the respondent's company for her employee food services. The one who corrupted the applicant according to the charge sheet are two: GEORGE KING and MWITA BHOKE This story is repeated by the respondent's witnesses at the CMA proceedings...I agree that corruption are serious offences in the country. In Tanzania there is a Bureau legally established for preventing and combating corruption. At least the alleged crimes could have been reported there to aid the investigation process of the serious allegations. A ll in absence o fproof o f all the said charges, the findings o f the disciplinary hearing is likely to be faulted as rightly done by the CMA ." [Emphasis supplied] The learned judge went on to say the following at page 466:

"It was expected by the respondent to prove the said allegations as alleged in the required legal standard. Short o f that, there was no proof o f the said charges as preferred by the respondent It was a termination based on a mere suspicion. Since suspicion however strong, cannot be the basis of conviction in criminal cases as standard o f proof has always been proof beyond reasonable doubt." [Emphasis supplied] The learned Judge then, went on and held that, there was no enough evidence to prove the disciplinary offences involving corruption, bribery, theft, fraud and dishonest which were serious criminal cases calling for proof beyond reasonable doubt. They were also supposed to be investigated by the Prevention and Combating o f Corruption Bureau (the PCCB) for better evidence in proof thereof. The follow up question now is whether the approach of the learned Judge was correct. The parties are holding the opposite views in the matter as intimated above. This calls for an examination of the law and the underlying principles. The relevant law is section 3(2) of the Evidence Act which states: "(2) A fact is said to be proved when- (a) In criminal cases, except where any statute or other law provides otherwise, the court is 1 n

satisfied by the prosecution beyond reasonable doubt that the fact exists; (b) In civil matters, including matrimonial causes and matters, its existence is established by a preponderance ofprobability." [Emphasis supplied] The import of section 3(2)(b) of the Evidence Act is similar to what is provided under Rule 9(3) of the Employment and Labour Relations (Code of Good Practice) Rules, 2007 GN 42 of 2007 which states: "(3) The burden o f proof lies with the employer but it is sufficient for the employer to prove the reason on a balance ofprobabilities . " [Emphasis suppled] It is thus obvious that, the standard of proof in civil cases is on the balance of probabilities and not beyond reasonable doubt as suggested by the High Court. This is for all civil cases including employment cases. Speaking of the balance of proof in civil cases, and after taking inspiration from English cases, the Court had this to say in Mr Mathias Erasto Manga v. MS Simon Group (T) Limited [2014] TZCA 291: "Lord Denning (M.R.) in Miller v. Minister of Pensions [1937] 2 ALL E. R. 372 at P. 374 puts down the standard o f proof on a balance of probability thus: -"It must carry a reasonable 11

degree o f probability but not so high as required in a criminal case. I f the evidence is such that the tribunal can say "We think it is more probable than not" the burden is discharged, but if the probabilities are equal ' it is not". Again , in Re Minor (1966) AC 563 at 586 it was held: "The balance o f probability standard means a court is satisfied an event occurred if the court considers that, on the evidence the occurrence o f the event was more likely than not". See also our decisions in Madeni Ally Mohamed & Others v. Shame Ally Mohamed & Another [2023] TZCA 17271, Crescent Impex limited v. Mtibwa Sugar Estates Limited [2023] TZCA 17501 and Mary Agness Mpelumbe v. Shekha Nasser Hamud [2022] TZCA 408 to mention but a few. The standard of proof in criminal cases was lucidly put in Magendo Paul & Another v. Republic [1993] TLR 219 where the Court had this to say: "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave a remote possibility in his favour which can easily be dismissed"

See also our decisions in Mohamed Haruna @ Mtupeni & Another v. Republic [2010] TZCA 141, Nyabohe Nyagwisi Nyagwisi v. Republic [2022] TZCA 337 and Hussein Ramadhani v. Republic [2016] TZCA 2074 to mention but a few. It is common ground between the parties that the standard of proof in criminal cases is higher than in civil cases. Labour cases are civil cases by their nature so the standard of proof is on the balance of probabilities as intimated above. This applies at all levels including before the disciplinary committees and the CMA. A disciplinary offence does not become a criminal offence by the mere fact that it is called an offence as suggested by the learned Judge. It remains a civil matter and its proof does not call for a higher proof than that of a civil case. It follows therefore that the learned Judge was in error when he applied the standard used in proving criminal cases in a civil case. He was also at error when he raised the issue of PCCB investigation in a matter which was pure civil and without inviting the parties to air their view on it. The errors vitiated the entire judgement making it illegal and a nullity. With this finding we find it of no use to consider other grounds of appeal whose deliberation will only be an academic exercise.

As to the way forward, the judgement of the High Court in Revision No. 16 & 17 of 2018 is vacated and set aside. We order the record to be remitted to the High Court and be placed before another Judge to compose another judgement according to the law. This being a labour matter, we will make no order as to costs. DATED at TABORA this 14th day of May, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered this 14th day of May, 2026 via virtual Court, in the presence of Ms. Caroline Lucas Kivuyo, learned counsel for the Appellant, also holding brief for Mr. Alhaj Abubakar Majogoro, learned counsel for the Respondent and Ms. Rehema Makakala, Court Clerk; is hereby ce^ ^ ^ ^ ^ ^ m copy of the original. )J| R- W. CHAUNGU \ /ftSEPUTY REGISTRAR V ^ V ^ COURT OF APPEAL