Ghalya Shaaban Salim vs Zanzibar Connection Co. Limited (Comnet) (Civil Appeal No. 723 of 2023) [2026] TZCA 548 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE, J.A.. FELESHI, 3.A. And NANGELA. J.A.^ CIVIL APPEAL NO. 723 OF 2023 GHALYA SHAABAN SALIM ........................................................ APPELLANT VERSUS ZANZIBAR CONNECTION CO. LIMITED (COMNET) ................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Zanzibar (Industrial Division) at Tunguu) fSuwedi J.) dated the 8th day of September, 2023 in Civil Application No. 04 of 2022 RULING OF THE COURT 5th & 12th May, 2026 MKUYE, J.A.: In this appeal, the appellant Ghalya Shaaban Salim is appealing against the decision of the High Court of Zanzibar (Industrial Division) which partially quashed the Dispute Handling Unit (DHU) award and ordered the appellant to be paid two (2) months salary for the annual leave for the years 2019 and 2020. Briefly, the facts of the case leading to this appeal are as follows: The appellant was an employee of the respondent, Zanzibar Connection Co. Limited (COMNET) since 2011 as a Customer Service Officer and was later promoted to a managerial position. On 20/4/2020, due to economic impact caused by COVD - 19 pandemic outbreak and the closure of hotels, COMNET issued a notice placing the appellant on unpaid leave from 1/5/2020 for indefinite period. Throughout the period, from 28/4/2020 to 28/10/2020, the respondent sent seven letters to the Labour Commissioner requesting for permission for the unpaid leave as required by law. On 30/6/2020, the Labour Commissioner issued a letter Ref. KK/01/04/VOL. 11/74, granting permission for the unpaid leave until 30/7/2020. Although the arbitrator found that there was no unfair termination, he awarded the appellant six months' salary for illegal unpaid leave and two months annual leave payment. Aggrieved, the respondent lodged an application for review before the High Court of Zanzibar (Industrial Division) which upon hearing both parties, upheld the arbitrator's finding that the respondent did not terminate the appellant and rather the appellant was invited to return to work but did not comply. The High Court also sustained the award of two months' annual leave for the years 2019 and 2020 since the respondent failed to adduce evidence that the appellant had taken her leave or that the claim was invalid under section 67 (1) of the Employment Act, 2005 (No. 11 of 2005) Concerning the issue of legality of unpaid leave, the High Court found that the respondent had fulfilled her legal obligation by consistently applying for permission from the Labour Commissioner and that failure by the Commissioner to respond to all written letters should not result in punishing the employer. Consequently, it was ruled that, the unpaid leave was not illegal and quashed the CMA's award of six months salary. Dissatisfied with the decision of the High Court, the appellant lodged the present appeal on three grounds as follows:- 1. That, the High Court o f Zanzibar erred in iaw and fact in reviewing and setting aside the award o f the DHU. 2. That, the High Court erred in iaw and fact by quashing the award o f six months salary for unpaid leave without sufficient justification. 3. That, the High Court erred in law and fact by failing to properly evaluate the evidence adduced before the DHU, thereby arriving at an erroneous decision. When the appeal was called on for hearing, the appellant was represented by Mr. Saleh Nassor Abdi, learned advocate and the respondent was represented by M r. Wallace Boniface Mfuko, learned advocate who both appeared through Video Conference. From the outset, M r. Abdi sought the indulgence of the Court to grant leave so that he can raise an issue he discovered in the course of his preparation for the hearing. He contended that, ordinally, when a witness gives evidence, he has to take oath or affirmation before giving it. However, in this case, the witnesses as shown at pages 63, 65 and 68 of the record of appeal gave evidence without first taking oath or affirmation. This, he said, contravened regulation 50 (1) of the Labour Relations (Mediation and Arbitration) Regulations 2011 requiring the witnesses to take oath or affirmation before giving their evidence. He argued further that, failure to do so vitiate the proceedings, and therefore, he prayed to the Court to invoke its powers under section 6 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2023 and nullify the proceedings, quash the judgment and order for a retrial before another arbitrator. In reply, Mr. Mfuko conceded to what was submitted by Mr. Abdi that the witnesses, indeed, testified without taking oath or affirmation. While relying on the case of Cyprian Majura Musiba v. Dorcas Richard Membe [2026] TZCA 387, he argued that the irregularity was fatal and the Court should nullify everything and order for a retrial. We have dispassionately considered the arguments in concession by both learned counsel and we, basically, agree with them. We note 4 that it is undisputed that the DHU recorded the evidence from both parties without administering oath or affirmation. This is vividly seen at pages 63, 65 and 68 of the record of appeal. For instance, at page 63 of the record of appeal, this is what transpired before Wales Mfuko (DW1) testified "Wales Mfuko, 36, Upanga Dar es Salaam , Christian... DW1 - Ni mgogoro wa kuvunjika kwa ajira kama ulivyoletwa na mlalamikaji..." At page 65 before Mohamed Othman Ibrahim (DW2) testified at DHU, it is recorded as follows:- "DW2 - Mohamed Othman Ibrahim , 35, Kikwajuni - Muislamu DW2 - IHpofika mwishoni mwa Machi, 2020, tulikaa.../' As for the complainant as shown at page 68 of the record of appeal, it is recorded as follows:- "SH 1 - Ghaliya Shaaban Salim, 49, Mbuyu Mnene Mwislamu,. SHI- Ninalalamika kuhusu malipo ya miezi 7 ya mshahara../' 5 As it can be seen in the above excerpts, much as the arbitrator indicated the witnesses' religion they professed, he did not administer oath or affirmation to them before they testified. Regulation 50 (1) of the Labour Relations (Mediation and Arbitration) Regulations 2011 (GN No 67 of 2007) in mandatory terms requires the witness to take oath or affirmation before giving his/her evidence. The said provision states as follows. "50 (1) The parties shall attempt to prove their respective cases through evidence and witnesses shall testify under oath through the following process:- (a) examination in chief to which the party calling a witness who knows relevant information about the issue in the dispute obtains that information by asking questions to the persons..., (b) cross examination to which the other party or parties to the dispute may after a witness has given evidence, ask any questions, including leading questions to the witness about the issues relevant to the dispute; and obtain additional information from the witness or challenge any aspect o f the evidence given by the witness; (c) re-examination, the party that initially called the witness has a further opportunity to ask questions to the witness relating to issues dealt with during cross-examination and the purpose o f re-examination is to correct or clarifying evidence covered during cross- examination"\ Emphasis added.] This Court had interpreted the provisions of regulation 25 (1) of the Labour Institutions (Mediation and Arbitration) Guidelines 2007 (GN No. 67 of 2007) which is in pari materia with regulation 50 (1) of the Labour Relations (Mediation and Arbitration) Regulations that, the requirement of witnesses to testify under oath is mandatory as it goes to the root of the validity of the proceedings. In numerous cases, this Court has pronounced itself that such omission is a fatal irregularity which vitiates the trial proceedings and the decision thereof. See: Engelbertus Lushagara v. Petrofuel (T) Limited [2024] TZCA 1034, Mathew Nyamwasa v. Tanzania Pipeline Ltd, [2025] TZCA 33; Cyprian Majura Musiba (supra); Copycat Tanzania Limited v. Khalid Abdaliah Salum [2022] TZCA 1; and Bulyankulu Gold Mines Limited v. Keneth Robert Fourle [2022] TZCA 460. For instance, in the case of Cyprian Majura Musiba (supra), the Court having referred to various decisions on the subject matter stated as follows:- ”... we reiterated our stance that failure to subject the witnesses to either oath or affirmation is fatal and renders the recorded i evidence a nullity and for that reason cannot be acted upon by the Court to determine the right o f the parties. In the same vein, it is our finding that the evidence o f PW1, PW2 and PW3 recorded without being sworn/affirmed was no evidence at all.... In the result we find that\ the trial judge strayed into error to rely on the respective evidence to determine the right o f parties in the case before her..." It is also important to note that, a similar stance has been adopted by the High Court, Industrial Court Division of Zanzibar in its persuasive decisions such as in Enock Mchilini Balema v. Ironsides Limited (Civil Application No. 14 of 2024) [2026] ZIC 2 and Hussein Academy v. Zuberi Said Juma and 2 Others, Civil Application No. 1 of 2024 [2026] ZIC. As submitted by both counsel, there was a clear contravention of regulation 50 (1) of the Mediation and Arbitration Regulations as the said DW1, DW2 and SHI testified without taking oath or affirmation. It means, therefore, failure by the arbitrator to administer the oath or affirmation to the respective witnesses before they gave their evidence, vitiated the proceedings and the decisions thereof. In the circumstances, based on the authorities cited above, we invoke our revisional powers under section 6 (2) of the AJA and nullify 8 the DHU's proceedings and the resultant award. We quash the proceedings and judgment of the High Court of Zanzibar (Industrial Division) and accordingly remit the matter back to the DHU for the matter to be retried by a different arbitrator. Since, this appeal emanates from a labour dispute, we make no order as to costs. It is so ordered. DATED at MBEYA this 11th day of May, 2026. Ruling delivered Virtually this 12th day of May, 2026 in the presence of Mr. Saleh Nassor Abdi, learned Counsel for the Appellant, Mr. Wallace Boniface Mfuko, learned Counsel for the Respondent and Mr. Elias Nkwabi, Court clerk, is hereby certified as a true copy of the R. K. MKUYE JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL original D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL