Jafari Chamkunde vs Twiga Bancorp Limited (Civil Appeal No. 112 of 2025) [2026] TZCA 558 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA f CORAM: KEREFU. 3.A.. MWAMPASHI., 3.A And ISMAIL,., J.A-.) CIVIL APPEAL NO. 112 OF 2025 JAFARI CHAMKUNDE....................... ............... ................... APPELLANT VERSUS TWIGA BANCORP LIMITED .............................................RESPONDENT [Appeal from the Decision of the High Court of Tanzania (Labour Division) at Dar es Salaam] (Luvanda.JJ dated 09th day of October, 2020 in Labour Revision No. 507 of 2015 RULING OF THE COURT 15th April & 13th May, 2026 MWAMPASHI. J.A.: This appeal seeks to challenge the decision of the High Court of Tanzania (Labour Division) at Dar es Salaam (Luvanda, J.) dated 09.10.2020 in Labour Revision No. 507 of 2019. In the said impugned decision, the High Court upheld the decision of the Commission for Mediation and Arbitration for Dar es Salaam (the CMA) dated 15.05.2019 in Labour Dispute No. CMA/DSM/ILA/R-1316/17/982 in which the termination of the appellant's employment by the respondent was found to have been fair. Jafari Chamkunde, the appellant herein, was on 03.11.2008 employed by Twiga Bancorp Limited, the respondent herein, as a Bank Clerk. As time passed, he was promoted to the position of Credit Analyst Manager, the position he held until 15.11.2017 when his employment contract was terminated on ground of gross misconduct contrary to Twiga Bancorp Limited Code of Ethics and Conduct, 2016. Aggrieved, he referred the dispute to the CMA challenging the termination for being unfair both substantially and procedurally. As we have alluded to above, the appellant lost his case before the CMA. It was found that the termination was based on valid reasons and fair procedure. The application to the High Court by the appellant for revision of the CMA's decision was also unsuccessful. The High Court dismissed it for being devoid of merit hence the instant appeal. In support of the appeal, the appellant filed a memorandum of appeal containing four grounds of complaint. However, for reasons that will become apparent in the due course of disposing of this appeal, we do not find a need of reproducing them herein. At the hearing of the appeal, while the appellant was represented by Mr. Fikiri Liganga, learned advocate, the respondent had the services of Mr. Innocent Mhina, learned Principal State Attorney, Mses. Jenipher Kaaya and Lightness Tarimo, both learned Senior State Attorneys, together with Mr. Boaz Msoffe, learned State Attorney. Before the hearing could commence, Ms. Kaaya, who addressed us on behalf of the respondent, raised two points of law which, she thought, and rightly so to us, needed to be attended to first, before delving into the merits of the appeal. The first point raised was on her worries regarding the CMA's jurisdiction in entertaining and determining the dispute which involved the appellant, who was a public servant. Second, was on the competence of the matter before the CMA and the subsequent application before the High Court as well as the instant appeal for involving the respondent who does not exist. The two issues raised being on point of law, counsel for the parties were invited to address us on the same. On the jurisdictional issue, Ms. Kaaya's focused argument was to the effect that, since it is undisputable that, the appellant was a public servant and also that, the respondent was a Government institution, then, in terms of section 37 of the Public Service Act [Cap. 298 R.E. 2023] (the Public Service Act), the appellant ought to have referred the dispute to the Public Service Commission by way of an appeal first and not to refer it to the CMA which had no jurisdiction to entertain the same. In so arguing, she relied on the decisions of the Court in Tanzania Posts Corporation v. Dominic A. Kalangi [2022] TZCA 154 and Rombo District Council & Another v. Hamis Haji Mfinanga [2024] TZCA 212. Ms. Kaaya expounded that, the appellant was required to have exhausted the remedies under the Public Service Act and further that, as the CMA had no jurisdiction to entertain and determine the dispute, the proceedings before the CMA and the High Court together with the resultant decisions are a nullity. Ms. Kaaya did also point out that, although the issue of the CMA lacking jurisdiction was raised by the respondent before the CMA, as a preliminary objection and was overruled, the respondent is not barred from raising it again, at this stage. Addressing us on the second issue that the respondent is a non existent entity, Ms. Kaaya submitted that, the respondent ceased to exist since 16.05.2018 when, by Public Notice issued by the Bank of Tanzania, the respondent merged with Tanzania Postal Bank forming a new entity known as Tanzania Postal Bank Pic. It was also argued that, although the merger and change of name of the respondent happened after the dispute had been referred to the CMA but before the issuance of the award, the appellant did not apply or cause the record, regarding the respondent's name, reflect the said changes. It was further submitted by Ms. Kaaya that, on 14.04.2021, after the issuance of the CMA award and the High Court's decision but before the lodgement of the instant appeal, Tanzania Postal Bank Pic changed its name to Tanzania Commercial Bank Pic. Based on the respondent's change of name as explained above, it was thus, concluded by Ms. Kaaya that, the award of the CMA was issued against the respondent who no longer legally existed. She further contended that, even the application for revision before the High Count and the instant appeal are against a non-existent respondent. For that infraction, Ms. Kaaya urged us to invoke our revisional powers under section 6 (2) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2023] (the AJA) and declare the proceedings before the CMA and High Court and the resultant decisions a nuliity. Responding to the first issue regarding the CMA's jurisdiction, Mr. Liganga faulted Ms. Kaaya for raising the issue before the Court at this stage. He argued that, the issue has not been properly raised. Mr. Liganga strenuously submitted that, at this stage the question of the CMA jurisdiction cannot be raised and entertained given the fact that, the same issue was raised as an objection before the CMA and was overruled and no appeal against the said decision was preferred. Mr. Liganga finally contended that, though, generally the issue is on a point of law, under the circumstances of this matter, it has not been properly raised. On the issue of the respondent being a non-existent entity, Mr. Liganga conceded that, the respondent had undergone the changes as explained by Ms. Kaaya and that the respondent is, indeed, a non-existent entity. He however, did not agree with Ms. Kaaya that, the proceedings have to be nullified for that reason. He argued that, nullifying the proceedings will amount to punishing the appellant unjustifiably. He further contended that, the appellant was not officially notified of the said changes and further that, while counsel for the respondent were fully aware of the changes, they never took the required necessary steps. He thus, urged the Court to just direct that, the respondent's name, as appearing in the record of appeal, be replaced by her current new name. Rejoinder was made by Mr. Msoffe whose brief response to Mr. Liganga's submissions was to the effect that, the change of the respondent's name was well known to the appellant hence the nullification of the proceedings will not be prejudicial to him. He also reiterated that the issue on the CMA lacking jurisdiction has been properly raised regardless of the fact that it was once raised and decided by the CMA and that no appeal was preferred against the respective CMA decision. Beginning with the issue on the CMA lacking jurisdiction to entertain a dispute involving a public servant, we should first express our disagreement with Mr. Liganga who has argued that, the issue has not been properly raised before the Court. As alluded to earlier, his argument is based on the fact that the issue was raised as an objection before the CMA and after being overruled no appeal was preferred against the decision. Apart from the fact that jurisdiction is a creature of statute it aiso constitutes a point of law that can be raised at any stage of proceedings. As stated by this Court in Isihaka Mzee Mwinchande v. Hadija Isihaka Civil Appeal No.99 of 2010 (unreported) and recently reiterated in Stephen S. Mnubi & Another v. International School of Tanganyika [2026] TZCA 435, jurisdiction connotes the limits which are imposed by statute upon the power of a validly constituted court to hear and determine issues between parties seeking to avail themselves of its process. In the latter decision, the Court emphasised that, before venturing into a determination of any matter, it is a primary duty of every court/tribunal to first satisfy that it is vested with the requisite jurisdiction to do so. In addition to the above position, it should also be stated that, no valid decision can be made by a court/tribunal which had no jurisdiction to entertain and determine the matter. Jurisdiction is the bedrock on which the court's authority and competence to entertain and decide matters before it rests. That being the position, a question of jurisdiction can be taken at any stage of the proceedings, even on appeal. See- Tanzania Revenue Authority v. Tanga Transport Company Ltd [2016] TZCA 84 and Kikumbi Challah Mrisho & Another v. Nasser Joseph [2024] TZCA 177. It is in that spirit that, whenever the issue of jurisdiction is raised regardless of the stage of the proceedings it is being raised, it must be addressed first. Hie objection and complaint by Mr. Liganga that, the issue has not been properly raised before us because it was once raised and decided by the CMA and no appeal was preferred against the decision, is misconceived and unfounded. The Court must satisfy itself whether the CMA had jurisdiction to entertain the matter, otherwise the validity not only of its proceedings but also of the decision will not be ascertained. On the issue whether the CMA had jurisdiction to entertain and determine the dispute, the fact that the appellant was a public servant who was employed by the respondent which was an entity owned by the Government of the United Republic of Tanzania, is not disputed. Further, as it was put clear by the Court in the case of Tanzania Posts Corporation v. Evaristo Miho [2024] TZCA 443, section 32A (now redesignated as section 37) of the Public Service Act which bars public servants to refer labour disputes to the CMA before first having exhausted the remedied as provided under the Public Service Act, came into force on 18.11.2016. This was after the amendment of section 25 of the Public Service Act by section 26 of the Written Laws (Miscellaneous Amendment) Act No. 3 of 2016 whereby section 32A was added. Therefore, the said s amendment came into force well before the appellant referred the dispute in question to the CMA on 14.12.2017. The provision was thus, in operation when the dispute was referred to the CMA. Under that provision it is stated that: "A public servant shall, prior to seeking remedies provided for in the labour laws, exhaust all remedies as provided under the Act". As it is clearly stated by the above reproduced provision of the law, a public servant is required to first exhaust remedies available under the Public Service Act before seeking the same under labour laws. That being the law, the CMA has no jurisdiction to entertain and determine a labour dispute involving a public servant before such a servant has exhaustedly sought remedies available under the Public Service Act. The Court has pronounced itself on the applicability of section 32A (now section 37) of the Public Service Act in a number of its decisions including Tanzania Ports Corporation v. Jeremiah Mwandi [2021] TZCA 311, Tanzania Posts Corporation v. Evaristo Miho (supra) and Tanzania Posts Corporation v. Dominic A. Kalangi (supra), where it was, among other things, stated that: "Going by the wording o f the above-quoted provision, it is unambiguous dear that all disciplinary matters or disputes involving public servants are exclusively within the domain o f the Public Service Commission whose decision is appealable to the President. As correctly submitted by Ms. Kinyasi and as amply demonstrated above, the CMA has no jurisdiction to adjudicate upon such matters". Guided by the above stated position of the law, we have no grain of doubt in our mind that, the CMA erred in assuming jurisdiction to entertain and determine the dispute between the parties which involved the appellant who was a public servant. Since the appellant had not first exhausted remedies available under the Public Service Act, the CMA lacked jurisdiction and was barred from exercising jurisdiction over the dispute. By entertaining and determining the dispute involving the public servant, the CMA went astray beyond its jurisdiction which is ousted by section 37 of the Public Service Act. The CMA vested itself with jurisdiction it did not have. Consequently, the proceedings of the CMA and its award are a nullity as it is for the proceedings and orders of the High Court. Since the issue on the CMA lacking jurisdiction to entertain and determine the dispute suffices to dispose of the appeal, we find no pressing reason to consider the issue regarding the respondent being a non-existent entity. 10 In fine, based on our finding that the CMA had no jurisdiction to entertain and determine the dispute involving the appellant who was a public officer, we are constrained to invoke our revisional powers under section 6 (2) of the AJA and nullify the entire proceedings of the CMA and quash the resultant award. In the same vein, the proceedings of the High Court and its orders are as well nullified and quashed for they originate from nullity proceedings. This being a labour dispute, no order as to costs is made. DATED at DODOMA this 12th day of May, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Ruling delivered Virtually this 13th day of May, 2026 in the presence of Mr. Fikiri Liganga, learned counsel for the appellant and Mr. Godfrey Tesha, learned counsel for the respondent and Mr. Shafii Kassim, Court Clerk; Court is hereby certified 35 ^ true copy of the original.