North Mara Gold Mine Limited vs Mwita Waise Samson (Civil Appeal No. 202412130001470 of 2024) [2026] TZCA 556 (13 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A.. MASOUD, J.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 202412130001470 OF 2024 NORTH MARA GOLD MINE LIMITED.........................................APPELLANT VERSUS MWITA WAISE SAMSON....................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania (Labour Division), at Musoma) (Mahimbali. 3.^ dated the 31st day of October, 2022 in Labour Revision No. 22 of 2021 JUDGMENT OF THE COURT 30hApril & I3 h May, 2026 MLACHA. J.A.: The respondent was employed by the appellant as Fitter and Tuner in the Assets Reliability department on 12.4.2012 and terminated on 9/11/2019 accused of theft and dishonest. Aggrieved by the termination, he filed a dispute at the Commission for Mediation and Arbitration (the CMA) at Musoma in CMA/MUS/331/2019 which found the termination to be unfair both substantive and procedurally. He was awarded 48 months' salary as compensation thereof. The appellant filed Labour Revision No. i

22 of 2021 at the High Court. It was dismissed leading to the filing of this appeal. Briefly stated, the facts relevant to this appeal can be presented as follows. On 09.05.2019, while on duty, the respondent arrived in a motor vehicle described as LV 213 at Gokona double gates from Gokona underground pit. He was stopped by security guards. On being searched he was found with 4 bags of gold bearing materials in the vehicle. Information was disseminated to higher authorities and the bags were apprehended. He was later sent to the disciplinary committee with the following disciplinary charge: "CHARGE NAME OF ACCUSED: Mwita Samson Weise OCCUPATION: Fitter DEPARTMENT: Asset Reliability ID NO.: 41976 COUNT 1 STA TEMENT OF THE OFFENCE Attempted theft o f company property contrary to offence 3.1 o f the Acacia Disciplinary Code PARTICULARS OF BREACH

That on the 9 h o f May 2019 at around 1720 hours while on security search point at Gokona Double Gates you deliberately attempted to steal 4 bags o f Gold Bearing Materials weighed 17.9 kg the property o f North Mara Gold Mine Ltd by transporting the said GBM through L V 213 that you were driving from Gokona underground pit contrary to the aforementioned rule. C0UNT2 STA TEMENT OF THE OFFENCE unauthorized possession o f company property contrary to offence 3.4 o f the Acacia Disciplinary Code PARTIULARS OF BREACH That on the 9 h o f May, 2019 at around1720 hours while on security search point at Gokona Double Gates you were deliberately found in possession o f 4 bags o f Gold Bearing Materials weighed 17.9 kg unauthorized the property o f North Mara Gold Mine Ltd by transporting the said GBM through L V 213 that you were driving from Gokona underground pit contrary to the aforementioned rule. C0UNT3 STA TEMENT OF THE OFFENCE 3

Commits any act amounting to dishonest in performance o f duty contrary to offence 3.13 o f the Acacia Disciplinary Code PARTICULARS OF BREACH That on the 9 h o f May, 2019 at around1720 hours while on security search point at Gokona Double Gates, you deliberately committed an act o f dishonest in performance o f your duties by being found illegally in possession o f 4 bags o f Gold Bearing Materials weighed at 17.9 kg the property o f North Mara Gold Mine Ltd inside L V 213 that you were driving from Gokona underground pit contrary to the aforementioned rule. COUNT 4 STA TEMENT OF THE OFFENCE Dishonest or any other major breach o f trust contrary to offence 4.8 o f the Acacia Disciplinary Code PARTIUCLARS OF BREACH That on the 9 h o f May, 2019 at around 1720hrs while on security search point o f Gokona Double Gates you deliberately major breached a trust you were entrusted by the company by being found illegally in possession o f 4 bags o f Gold Bearing

Materials weighed 17.9 kg the property o f North Mara Gold Mine Ltd inside L V 213 that you were driving from Gokona underground pit contrary to the aforementioned rule." He was found guilty and convicted in all disciplinary offences. The committee recommended termination of his employment. His appeal to the General Manager was partly successful in that, much as the conviction was sustained, but the recommendation to terminate him was not taken. The punishment of termination of employment was reduced and replaced by the punishment of Final Written Warning. He was notified of the outcome of the appeal and returned to work. Sometimes later he received a notice to appear before the General Manager for a rehearing of the appeal. The General Manager re-opened the disciplinary proceedings at an appellate level and confirmed the decision of the disciplinary committee in total leading to the termination of the respondent. Dissatisfied, he lodged a claim for unfair termination at the CMA which decided the case in his favour and ordered payment of 48 months' salary for unfair termination under section 40(1) (c) of the Employment and Labour Relations Act (the ELRA). This decision was upheld by the High Court hence the appeal as intimated above. The appellant filed a memorandum of appeal containing 6 grounds of appeal which can be paraphrased to carry the following complaints.

One, the arbitrator did not append his signature in the testimony of DW4; two, the learned Judge erred in holding that the standard of proof of disciplinary charges was beyond reasonable doubts; three, the learned Judge erred in finding that the termination of the respondent was substantively unfair; four, the learned Judge erred in finding that the disciplinary charges against the respondent were not proved; five, the learned Judge erred in finding that the termination of the respondent was procedurally unfair and; six, the award of compensation for 48 months to the respondent was not justified. The appellant was represented by Mr. Faustine Anthony Malongo and Caroline Lucas Kivuyo, learned advocates whereas the respondent was represented by Mr. Ernest Alfred Mhagama, also learned advocate. At the onset, in earnest, Mr. Malongo with leave of the Court, abandoned grounds 3, 4 and 5 because they are based on facts hence the Court lacked jurisdiction to hear them. He remained with grounds 1, 2 and 6. He adopted the contents of his written submissions, earlier on filed in terms of rule 106(1) of the Tanzania Court of Appeal Rules 2009 (the Rules) as part of his submissions in support of grounds 1,2 and 6. Amplifying in ground 2, Mr. Malongo made reference to pages 398 and 399 of the record of appeal and submitted that, the learned Judge 6

erred in law by saying that disciplinary offences were supposed to be proved beyond reasonable doubt because the standard of proof in civil cases, labour cases inclusive, is on the balance of probabilities. He contended that, the learned Judge treated disciplinary charges against the respondent as criminal charges and gave them a higher standard of proof contrary to the law. In this regard, counsel concluded, the High Court upheld the decision of the CMA that there was no proof against any of the disciplinary charges. He argued that, if the High Court had applied the standard of proof applicable in civil cases in deciding the appeal, it could find that the CMA erred in finding that there was no evidence to prove the disciplinary offences. He contended that the decision of the High Court was illegal because it was based on a wrong premise. As to the way forward, he urged the Court to vacate the judgment and return the file to the High Court to compose another judgement. In reply, Mr. Mhagama, after adopting the contents of his written submissions earlier on filed in terms of rule 106(7) of the Rules he submitted that the approach of the learned Judge was correct because though he fixed the standard of proof to be above the standard ordinarily used in civil cases, he did not decide the case at that level of proof. When he was engaged by the Court on how the learned Judge could arrive at that level of thinking in a civil case, he admitted that to be an error but 7

maintained that it did not affect his decision. When engaged to get his views on whether the parties had a chance to address the court on the standard of proof, he admitted that the matter was just raised suo motto in the judgement. That notwithstanding, he urged the Court to find that what was said by the learned Judge was irrelevant and we should disregard it. We have examined the record of appeal and consideredtherival submissions of the parties on this ground. In upholding the decision of the CMA, the High Court said at pages 398 and 399 of the record of appeal as follows: "In the current case, both substantive and proceduraljustice were not weii complied with in reaching the justice o f the case. The charges preferred against the respondent at the disciplinary committee were not weii established. As the charges involved theft offences, it was expected that there ought to be proof beyond reasonable doubt as this is the legal standard in criminal cases. This being the national and international standard recognized by the national laws as well international standards, could not be lowered by the applicant. That the respondent was just driving the said vehicle while still within his 8

employer's premises, the alleged theft was not complete. Otherwise, there ought to have been dear evidence on that." [Emphasis supplied] The learned Judge then went on and held that there was no enough evidence to prove the disciplinary offences which he had found to be criminal in nature calling for proof beyond reasonable doubt. The follow up question now is whether that was correct. The parties are holding the opposite views in the matter as intimated above. To resolve the controversy, we find it is imperative to start with the law and principles regulating proof of cases. 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 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 of probability . " [Emphasis supplied] 9

Speaking of proof in criminal cases and making reference to the above provisions, the Court had this to say in Magendo Paul & Another v. Republic [1993] TLR 219 where it was stated thus: "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. The standard of proof in civil cases was lucidly pronounced in Mr Mathias Erasto Manga v. MS Simon Group (T) Limited [2014] TZCA 291 where the Court took inspiration from English cases and had this to say: ''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 o f probability thus: -"It must carry a reasonable 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. 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. 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. The error 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. 22 of 2021 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 13th day of May, 2026. Judgment delivered this 13th day of May, 2026 via virtual Court, in the presence of Ms. Caroline Lucas Kivuyo, learned counsel for the Appellant, Mr. Ernest Mhagama, learned counsel for the Respondent and Ms. Rehema Makakala, Court Clerk; is hereby certified as a true copy of the original. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 12