Juma Said Juma vs Board of Trustees of Tanzania National Park (Civil Appeal No. 378 of 2025) [2026] TZCA 568 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: MWANDAMBO. 3.A., KENTE, J.A. And MGONYA, J.A.l CIVIL APPEAL NO. 378 OF 2025 JUMA SAID JUMA ......................... ....................................... APPELLANT VERSUS THE BOARD OF TRUSTEES OF TANZANIA NATIONAL PARK .................. ............................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Rumanvika J.) dated the 15th day of September, 2021 in Labour Application No. 26 of 2021 JUDGMENT OF THE COURT 3th & 13th May, 2026 MWANDAMBO, J.A.: Juma Said Juma appeals against che decision of the High Court (Labour Division) sitting a t: Mwanza in Labour Application No. 2 .6 of 2021 made on 15 September 2021 dismissing the appellant's application for extension of time to seek revision. The High Court dismissed the application due to the appellant's failure to account for the delay in seeking revision. The appeal is upon a sole ground faulting the High Court for i

dismissing the application without affording the appellant opportunity to be heard after it had overruled the preliminary objections against its competence. Briefly, the appellant who was an employee of the respondent as a security guard, was terminated on 3 January 2020 allegedly for misconduct on several disciplinary counts. Dissatisfied, he challenged that termination before the Commission for Mediation and Arbitration for Mwanza ("the CMA") vide Dispute No. CMA/MZ/NYAM/29/2020 for being unfair praying for reinstatement without loss of remuneration. In its award delivered on 15 February 2021, the CMA found the impugned termination fair both substantively and procedurally and dismissed the dispute for lacking in merit. The appellant's attempt to challenge the award by way of revision before the High Court at Mwanza in Labour Revision No. 19 of 2021 hit a snag after sustaining three preliminary objections touching on the competence of the application resulting in an order striking out that application. Subsequently, the appellant lodged Labour Application No. 26 of 2021 seeking extension of time to apply for revision. That application was met with two preliminary objections in which counsel for both parties addressed the court but it dismissed both of them for being baseless.

Having so done, the court proceeded to determine the merits of the application. Having satisfied itself that the appellant had not accounted for the delay in filing his application, it dismissed it, hence, the instant appeal. Before the hearing of the appeal began, Ms. Grina Aden, learned Principal State Attorney assisted by Ms. Neema Mwaipyana, learned Senior State Attorney and M r. Allen Mbuya, learned State Attorney who appeared to represent the respondent sought and was granted leave under rule 113 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to address the Court on a jurisdictional issue. It relates to the appellant's right referring a dispute on the fairness of the termination to the CMA. Addressing the Court, counsel argued that, since the appellant was a public servant governed by the Public Service Act ("the Act"), he had no direct recourse to the CMA challenging the fairness of his termination before exhausting the remedies prescribed under the Act in pursuance of section 37 of the Act. Referring to the Court's decisions in Tanzania Posts Corporation v. Dominic Kalangi [2022] TZCA 154 and Tanzania Posts Corporation v. Salehe Komba & Another [2023] TZCA 17628, Ms. Aden pressed that, the CMA had no jurisdiction to entertain the dispute preferred by the appellant who had not exhausted the remedies prescribed under the Act. She thus invited the Court to find the proceedings before

the CMA a nullity and quash them along with the resultant award and the proceedings and decision of the High Court in the exercise of its revisiona! power vested on it under section 6(2) of the Appellate Jurisdiction Act (the A] A). The appellant had the services of M r. Akram Adam, learned advocate who resisted the preliminary objection urging us to dismiss it for being baseless. To begin with, M r. Adam contended that the Act deals with two categories public servants; those in the executive agencies and Government institutions governed by the laws establishing them and those in the Operational Service who are governed by the Act to whom the Employment and Labour Relations Act ("the ELRA") applies in terms of section 35 and 36 respectively. M r. Adam thus argued that, the appellant who was a public servant in the Operational Service governed by the ELRA and thus he had a right to refer his dispute on the fairness of the termination to the CMA. According to him, the appellant fell in the cadre of supporting staff not employed in the executive or officer grades in terms of section 3 of the Act which stipulates that: "A public servant shall, prior to seeking remedies provided for in labour laws, exhaust all remedies as provided for under this Act"

Counsel implored us to find that much as section 37 of the Act prohibits public servants from seeking remedies for unfair termination through the procedure prescribed under the ELRA, it did not apply to him because he was not a public servant. On that account, he argued that the decisions of the Court referred to by the learned Principal State Attorney were distinguishable as they involved public servants in the executive cadre which are regulated by the procedure prescribed by the Act. In any case, counsel argued, the respondent cannot be heard to say that the appellant had no recourse to the CMA to challenge the fairness of the termination in view of clear evidence that he was charged for disciplinary offences under the Employment and Labour Relations (Code of Good Practice) Rules, G.N. No. 42 of 2007 ("the Code of Good Practice Rules") and the disciplinary proceedings were conducted in accordance with the said code let alone the fact that the termination letter advised him to refer his dispute to the CMA within 30 days of the decision if he was aggrieved with the termination. In the premises, Mr. Adam contended that, the CMA had requisite jurisdiction over the appellant's case and thus the invitation to exercise the Court's revisional power did not arise. Ms. Aden reiterated her earlier submissions and downplayed the argument that the appellant who was employed as a Security Guard Grade

IV fell under Operational Service cadre. According to her, the appellant could not be treated as a supporting staff thus falling into the Operational Staff cadre. However, a little later in the course of her submissions, Ms. Aden conceded that the respondent's resort to applying the disciplinary procedure set out under the Code of Good Practice Rules instead of the procedure set out under the Act and the relevant regulations was flawed. As the procedure leading to the appellant's termination was flawed, counsel conceded that it was, but a nullity, so was the resultant decision. She thus invited the Court to declare it as a nullity with the net effect that the appellant had never been terminated and thus there could be no valid referral of the dispute to the CMA. She implored the Court to order a fresh disciplinary hearing in accordance with the relevant regulations. Given the opportunity to comment on the final point, Mr. Adam welcomed the concession and urged that the appellant must be treated as still in employment until decided otherwise upon due process of the law. We shall begin our discussion with the issue that cropped up in the course of the oral submissions which relates to the jurisdiction of the CMA to determine the dispute on which no valid decision terminating the appellant had been made as contended by Ms. Aden. Both counsel agree that the manner in which the respondent formulated the charges and

conducted disciplinary proceedings to an employee who was governed by the respondent's Staff Regulations was irregular vitiating the proceedings and the resultant decision. Apparently, Ms. Aden was not very helpful to the Court in this regard by citing to us a specific provision under the law or the Act to support her line of argument. It is pertinent that, the respondent is a Government institution established under the National Parks Act ("the NPA"). Acting under section 22 of the NPA, the respondent's Board of Trustees established under section 8(1) thereof made the Tanzania Parks Staff Regulations, G.N. No. 337 of 2011 (the Regulations) which apply to employees of the respondent. Regulation 81 of the Regulations prescribes a procedure in formal disciplinary proceedings that include formulation of a formal charge setting out the nature of the offence(s) alleged to have been committed by an accused employee to be the form prescribe under Part TV in the second schedule thereto. Regulation 88 of the Regulations prescribes a procedure for appeals against decisions of the disciplinary authority. In particular, we reproduce the relevant parts as hereunder: "88 (3) The appeal shai/ be made within thirty (30) days o f the decision o f the disciplinary authority 7

provided that where statutory period fixed by labour laws is at variance with the period set in this Regulation such statutory period shall prevail. (4) Appellate authority shall be those statutory bodies created by the labour laws in force. (5) The procedure on appeal shall be that prescribed by the relevant labour laws in force." It will be recalled that, section 35 of the Act provides that public servant in the executive Agencies and Government institutions are governed by provisions of laws establishing them along with the provisions of the Act. Consistent with the above, the respondent's Board of Trustees made Staff Regulations to deal with various matters, discipline included. In its wisdom, the Board saw it fit to adopt the disciplinary procedure set out under the Code of practice Rules to govern its employees including appeals against decisions of the disciplinary authority to statutory bodies created by labour laws in force. No doubt, one of such bodies is the CMA to which the appellant preferred his dispute resenting his termination. The appellant exercised his right consistent with the explanation given to him by the disciplinary authority at page 47 of the record of appeal. What emerges from the foregoing is that, unlike the learned counsel's agreement on the issue, we are far from being persuaded that

the manner the charges laid against the appellant were framed citing the violations of the Code of Good Practice Rules and the conduct of the disciplinary proceedings using the procedure laid down therein had any bearing on the ultimate decision terminating the appellant so as to render it invalid as submitted by Ms. Aden. On the contrary, upon our examination of section 35 (1) of the Act read together with the respondent's Staff Regulations, we have seen nothing to interfere with the decision terminating the appellant as urged by the learned counsel. Having disposed of the issue involving the validity of the process and decision that culminated inthe termination of the appellant, we now turn our attention to the crux of the respondent's preliminary objection. In our discussion, we wish to reiterate that the law on the exhaustion of internal remedies under the Act in terms of section 37 (formerly 32A) of the Act is weli settled through a plethora of decided cases by the Court in this area including those cited to us by Ms. Aden. However, the issue here is whether in the light of what we have already discussed above, the appellant was precluded from accessing the CMA to contest his termination. 9

M r. Adam would have us agree with him that the appellant is not covered by section 37 of the Act because he was not an employee in the operational service cadre. We respectfully disagree with him mindful that the Regulations do not have any category of public servants in the operational service in the same way the Act does in section 36 thereof. That being the case, the question for our consideration and determination is whether the fact that regulation 88(4) of the Regulations gave the appellant right to appeal to the appellate authority prescribed by the relevant labour laws in force (in this case, the CMA) vested the CMA with jurisdiction over the dispute on the fairness of his termination as it were. The answer to this question seems to be available from section 35(2) of the Act which provides: "(2) without prejudice to subsection (1), public servants referred to under this section shaii also be governed by the provisions of this Act." There can be no doubt that, one of the relevant provisions that govern public servants relates to appeals to the Public Service Commission (the PSC) against decisions of disciplinary authorities in accordance with the provisions of section 27(l(b) of the Act which provides: '27(1) Where: 10

(a) n.a (b) a Permanent Secretary, Head o f an Independent Department, Regional Administrative Secretary or a local government authority exercises disciplinary authority as stipulated under section 6 by reducing the rank o f a public servant other than reversion from a rank to which the public servant had been promoted or appointed on trial, or reduces the salary or dismisses the public servant, that public servant may appeal to the Commission against the decision of the disciplinary authority and the Commission rnay confirm, vary or rescind the decision of that disciplinary authority; (c) n.a "[Bolding added for emphasis] In our view, that section applies to the public servants in the Executive Agencies and Government institutions as well notwithstanding existence of specific regulations prescribed by the laws establishing them catering for disciplinary matters. It follows thus that, in view of section 37 of the Act, such public: servants have no recourse to the CMA like any other public servants except those falling under the operational service cadre. It is thus our firm view that, irrespective of regulation 88(4) of the 11

Regulations, the appellant had no recourse to the CMA over the dispute challenging unfairness of his termination. We say so considering that, the regulation could not have prevailed over section 37 of the Act and vest right in the appellant seeking recourse through the CMA as it were. As night falls a day, in view of the settled law requiring public servants to exhaust internal remedies provided for under the Act, in particular, section 27(l)(b) thereof by way of appeal to the PSC, taking the same path we have consistently taken in similar cases, we have no lurking in holding as we do that the CMA had no jurisdiction to entertain and arbitrate the dispute as it did. As it lacked jurisdiction, the proceedings before it and the resultant award were a nullity from which no valid application for revision could have been preferred to the High Court. In the event we sustain the preliminary objection and, in the exercise of the Court's revisional power under section 6(2) the AJA, we quash the proceedings before the CMA and vacate the award in Dispute No. CMA/MZ/NYAM/29/2020 for being a nullity together with the proceedings and the decision of the High Court in in Labour Revision No. 19 of 2021 having emanated from a nullity. 12

That said, we strike out the instant appeal having been preferred from an invalid decision. Each party shall bear his own costs. Order accordingly. DATED at MWANZA this 12th day of May, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Judgment delivered this 13th day of May, 2026 in the presence of M r. Akram Adam, learned counsel for the appellant, Ms. Agnetha Kamaia, learned State Attorney for the respondent and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. W KALEGEYA REGISTRAR OF APPEAL A. L. EPUTY OURT 13