Fred Peter Machunda vs Rahma Said (Civil Appeal No. 2244 of 2025) [2026] TZCA 555 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A.. MASOUP. J.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 2244 OF 2025 FRED PETER MACHUNDA.............................................................APPELLANT VERSUS RAHMA SAID............................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mwanza) (Ismail. J.) dated the 11th day of August, 2020 in Consolidated Labour Revision Nos. 97 & 100 of 2019 JUDGMENT OF THE COURT 4th & 13th May, 2026 MASOUP, J.A.: The appellant and the respondent were at issue on whether the latter was employed by the former as a shopkeeper from September, 2016 to 30th December, 2017 when the former allegedly terminated the employment without fair reason and without following procedure. Aggrieved, the respondent instituted a labour dispute, that is CMA/MZ/ILEM/37/2018/82/2019 before the Commission for Mediation and i Arbitration (CMA). After hearing the parties, the CMA, partly decided the dispute in favour of the respondent having found that the termination was procedurally and substantively unfair, and hence awarded her among other things, six months' salary remuneration as compensation for unfair termination. Both parties herein were aggrieved by the decision of the CMA whose outcome is as hinted above. They separately sought for a revision of the CMA's decision before the High Court. While the appellant sought to quash and set aside the CMA's proceedings and its award on ground of being instituted out of time and not complying with procedure, the respondent sought to fault the CMA's award for not awarding her 12 months' salary remuneration for unfair termination. With leave of the High Court, the two applications for revision were consolidated as a Consolidated Labour Revision Nos. 97 & 100 of 2019. In its determination after hearing the parties, the High Court dismissed the appellant's application, while it partly allowed the respondent's application by enhancing the compensation payable to the respondent from the 6 months' salary remuneration to 12 months' salary remuneration. As the appellant was aggrieved by that decision, he preferred the instant appeal on four grounds. They could however best be condensed and paraphrased as raising three complaints as follow: One, there was violation of rule 25 (1) of the Labour Institutions (Mediation and Arbitration) Rules, GN No. 67 of 2007 (the LIR) regarding administration of oath and affirmation to witnesses before testifying; two, the dispute was time barred under rule 10 (1) of GN No. 64 of 2007 and the CMA as such had no jurisdiction; and three it was wrong to enhance arbitral award whilst there was no proof of employment relationship. When the matter was called on for hearing, both parties appeared before us in person unrepresented through video conferencing whilst at the High Court of Tanzania, at Mwanza. They had nothing other than adopting their respective written submissions which they lodged in the Court earlier. They covered all grounds of appeal without exception. Reading the above grounds along with the rival submissions, we thought that the first complaint which alleges that there was a fatal irregularity in the proceedings of the CMA which was not found by the High Court and which involves gross violation of rule 25 (1) of the LIR as to the manner in which the witnesses testified before the CMA deserved a close attention by the 3 Court before we proceed any further given the consequences that attach to that irregularity. There is a plethora of authorities of this Court covering situations where there are such an irregularity involving violation of rule 25 (1) of the LIR. In the case of Richard Nyarugenda & Others v. Airtel (T) PLC [2025] TZCA 831, while citing a number of our previous decisions involving violation of the above provision, the Court stated in details as follows: " There is, indeed, a plethora o f authorities o f this Court on the issue at stake in this matter. They aii pronounced the settled position o f the law that failure by an Arbitrator o f the CMA to administer an oath on a witness or accept an affirmation from him before such witness gives evidence is fatal and renders the proceedings a nullity. Needless to say, this position reflects, among others, the requirements o f the provisions o f rule 19 (2) read together with rule 25 (1) o f the LIR. In a nutshell, these provisions require an arbitrator to administer oath on any person who appears to him to give evidence and places a concurrent obligation on the parties to the dispute to prove their cases on oath. In relation to the above position o f the law, see for instancef amongst many, the cases of, Attu J. Myna v. Cfao Motors Tanzania Limited [2022] TZCA 187; Catholic University o f Health & Allied Science (CUHAS) v. Epiphania Mkunde Athanase [2020] TZCA 1890; North Mara Gold Mine Limited v. Khalid Abdallah Salum [2022] TZCA 1; Unilever Tea Tanzania Limited v. Davis Paul Chaula [2021] TZCA 760; and Iringa International School v. Elizabeth Post [2021] TZCA 496. The settled position o f the law above was restated in the case o f Catholic University of Health and Allied Sciences (CUHAS) (supra) wherein the Court, faced with an identical situation as it is in the instant matter, emphasized, among other things, that: "Where the law makes it mandatory for a person who is a competent witness to testify on oath, the omission to do so vitiates the proceedings because it prejudices the parties' cases . ' " Against the backdrop of the above statement of principle, we went ahead to examine the record whilst mindful of the position of the law in rule 25 (1) of the LIR and what the parties addressed us on the issue. Our 5 reading of the testimonies of witnesses who gave evidence before the CMA from pages 32 to 54 of the record of the appeal left us in no doubt that there were valid concerns regarding the administration of oath on the witnesses or accepting an affirmation from them as is relevant. The concern involves all witnesses, namely, Fred Peter Machunda (DW1), Rahma Said Mbaraka (PW1), and PW2, whose name was not disclosed, who gave evidence before the CMA. Notably, as regard to DW1 and PW1 the record has it that they testified after an oath or affirmation was administered on them or accepted from them by the arbitrator as is apparent at pages 40 and 43 of the record. However, there is a vivid absence of a specific statement subsequent to their respective names, ages and religion carrying such an oath or affirmation. In other words, there is no single statement following their names, age and religion showing that either an oath was administered on them or an affirmation was accepted from them before giving their testimonies. The concern is even worse to PW2, a key witness of the respondent at page 43, whose testimony was clearly taken by the arbitrator without recording his/her name, disclosing his/her religion and without having any statement as to an oath or an affirmation that was administered on him/her 6 or accepted from him/her respectively. Unlike the case with the previous witnesses, there was at page 51 of the record of appeal clearly no any single record suggesting that his/her testimony was recorded after the administration of an oath or after acceptance of her/his affirmation. We subscribe to the above position of the law regarding violation of rule 25 (1) of the LIR which is a fatal irregularity vitiating the proceedings. Given what we found on the record regarding irregularities in administering oath and/or accepting affirmation, we find and hold as submitted by the appellant that the irregularity is fatal. We say so because, the witnesses were effectively not sworn or affirmed which means that their evidence was as good as no evidence. The irregularity being fatal as it is, it has as a result vitiated the proceedings before the CMA and the subsequent proceedings before the High Court because it prejudices the parties to the case. In the event, we allow the appeal on the first ground of appeal. Consequently, we nullify the proceedings of the CMA, quash and set aside the resultant award. We, likewise, nullify the proceedings of the High Court in Consolidated Labour Revision Nos. 97 & 100 of 2019, quash and set aside the ruling and the resultant order thereof. We order the matter to be remitted to the CMA for Dispute No. CMA/MZ/ILEM/37/2018/82/2019 involving the parties herein to be heard afresh before another arbitrator. As the appeal arises from a labour dispute, we make no order as to costs. DATED at TABORA this 12th day 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 13th day of May, 2026 in the presence of the Appellant and Respondent who appeared in person unrepresented by virtual Court, and Ms. Rehema Peter Makakala, Court Clerk; is hereby COURT OF APPEAL 8