Raphael Ologi Andrea vs Musoma Urban Water Supply & Sanitation Authority (Civil Appeal No. 163 of 2024) [2026] TZCA 537 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A., MASOUD. 3.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 163 OF 2024 RAPHAEL OLOGI ANDREA ........................................................... APPELLANT VERSUS MUSOMA URBAN WATER SUPPLY AND SANITATION AUTHORITY.................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Musoma) (Kisanva. J.^ dated the 29th day of May, 2020 in Labour Revision No. 21 of 2019 JUDGMENT OF THE COURT 4h & 12t h May, 2026 MLACHA. 3.A.: The appellant, Raphael Ologi Andrea, was employed by the respondent, Musoma Urban Water Supply and Sanitation Authority (MUWASA), initially as a casual plumber on 01.01.1997, but later entered into fixed-term employment contracts and served up to 02.07.2018 when his employment was terminated. Aggrieved by the termination, he referred the dispute to the Commission for Mediation and Arbitration (the CMA) at Musoma in CMA/MUS/162/2018. The CMA found the termination i to be procedurally unfair. It awarded 36 months' salary as compensation under section 40 (1) (c) of the Employment and Labour Relations Act (the ELRA). The respondent was dissatisfied and challenged the award before the High Court Labour Division in Labour Revision No. 21 of 2019 which reduced the compensation from 36 months to 9 months' salary. Dissatisfied, the appellant has now approached this Court challenging the decision. The background facts leading to this appeal can be presented, albeit briefly as follows. The appellant, a primary school leaver, was employed by the respondent as a plumber in 1997. He worked as a casual employee but later given fixed term contracts. His last contract, exhibit P3 started on 01.07.2014 and was to run up to 30.07.2017. On 20.07.2017 he was served with a letter (Exhibit P6) informing him that his salary had been suspended in compliance with a directive of the Principal Secretary Establishment (Utumishi) reference No. CFC.26/205/01 "Q"/61 dated 10.07.2017 which demanded all employees who were employed after 20.05.2004 to provide evidence that they have completed secondary education at the level of Form Four. He was required to provide his form four certificate on or before 14.08.2017 or else his services could be terminated. As he was a mere standard seven, he could not produce the form four certificate. That notwithsatnding, he continued to work up to 2 when his employment was terminated in a letter reference number UWASA/PF16/58 (exhibit P7) dated 02.07.2018 citing his failure to produce the From Four certificate as the reason for his termination. Prior to that, he was not called to attend any meeting with his employer to deliberate on the termination and his terminal benefits. He could not see justice in the termination. He lodged a dispute at the CMA contending, that the respondent did not comply with the law governing retrenchment and termination based on operational requirements. Upon hearing the parties, the arbitrator found that the termination amounted to retrenchment on operational requirements which was supposed to follow the mandatory procedures under ELRA and Labour Relations (Code of Good Practice) Rules, 2007. The respondent did not comply with the law making the termination unfair procedurally. He awarded the appellant compensation equivalent to 36 months' salary being the unexpired and expected duration of the contract taking into consideration that the new contract took effect after the expiry of the former contract on 30.07.2017. The respondent lodged Labour Revision No. 21 of 2019 before the High Court Labour Division at Musoma. The learned Judge agreed with the CMA that the termination was procedurally unfair but differed with the arbitrator on the amount to be awarded. Relying on what he considered to be a five-year contract running from April, 2013 to March, 2018, the learned Judge held that the appellant had only nine months remaining under the contract at the time of termination. He accordingly reduced the award from 36 months attracting a payment of TZS 18,360,000.00 to 9 months TZS 4,590,000.00. The appellant was dissatisfied with that decision and lodged the present appeal fronting 3 grounds of appeal which for reasons which will be apparent soon, we will not reproduce them. When the appeal was called for hearing before us, the appellant appeared in person whereas the respondent had the services of Mr. Kitia Turoke learned Senior State Attorney, who teamed up with Mr. Samwel Mahuma and Gureni Mapande, both learned State Attorneys. When the appellant was engaged by the Court on whether his grounds of appeal were in compliance with section 58 of the Labour Institutions Act (the LIA) which direct that the Court should hear complaints on matters of the law and rule 31 (3) of the Labour Court Rules which require grounds of appeal in a memorandum of appeal to specify points of law which are alleged to have been decided wrongly, on reflection, he abandoned grounds 2 and 3. He remained with ground 1 which carry the complaint that, the trial Judge reduced the award without regard to the underlying contract between the parties. 4 When Mr. Turoke was invited to air his views on the grounds of appeal, he was at one with the appellant that grounds 2 and 3 were based on factual issues and thus the Court has no jurisdiction to deal with them. Additionally, he informed the Court that he had no qualms with ground number 1 which he conceded. Amplifying, he submitted that the High Court reduced the award from 36 months to 9 months on the strength of a letter of the respondent dated 10.04.2013 headed "YAHUSU KUONGEZWA MKATABA KWA MIAKA MITANO (5)" appearing at page 25 of the record of appeal, wrongly because that letter was not an exhibit before the CMA. It was merely annexed in the pleadings. He submitted further that, for the document to be part of the evidence in court, it was important for it to be tendered and received into evidence at the CMA and considered as such. He contended that, much as it is true that rule 17 of the Labour Court Rules has a flexibility of procedure in matters of evidence but the learned Judge was not justified to use a document which was not part of the exhibits at the CMA without affording the parties a right to be heard. He cited our decision in in Zanzibar Telecommunication Ltd v. Ali Hamadi Ali & Others [2020] TZCA 1919 where it was stated that an annexed document is not part of the evidence in court to support his contention. 5 The appellant being a layman had nothing to say other than urging the Court to allow the appeal so that he could be paid his rights which are long overdue. We have carefully considered the record of appeal and considered the submissions of the parties. The central issue in this appeal is whether the learned Judge was justified reducing compensation award from 36 months to 9 months. In arriving at its decision as appearing at pages 139 -140 of the record of appeal, the High Court had this to say: "On my part, the tetter reference UWAS/PF16/34 dated 10.04.2013 (exhibit P2) suggests that the respondent has a five years contract from 01.04.2013 to 31.3,2018. In this regard unless renewed by the applicant, the respondent employment was expected to lapse on 31.03.2018, I understand that, in 2014 the respondent was issued with a three years contract vide letter Ref. No. UWASA/PF16/44 dated 01.08.2014 (exhibit P3). However, the 2014 letter did not revoke the previous contract dated 10.04.2013. Further, it did not even state the respondent salary which is an essential ingredient in an employment contract. Therefore, the employment contract was terminated with effect from July 2017, the 6 remaining contract period for the five years contract from 2013 was 9 months. Then the respondent was entitled to compensation of the said 9 months' salary (Tshs. 4,590,000) and not 36 months' salary (Tshs. 18,360,000) granted by the arbitrator or 228 months' salary (Tshs. 116,280,000) requested by the respondent." [Emphasis supplied] The letter Reference No. UWASA PF16/34 dated 10.04. 2013 appearing at page 25 of the record of appeal is an annexure. It was not tendered in evidence and marked exhibit P2 as shown by the learned Judge. Exhibit P2 appearing at page 52 is a letter of the respondent addressed to the appellant dated 25.04.2013. It is headed "KUKUBALI MKATABA" making reference to the letter reference UWASA/PF16/34 dated 10.04.2013 which was not one of the exhibits in court. It is this letter which was used by the learned Judge to establish that the remaining contract period for the five years contract was 9 months and not 36 months. This letter not being one of the exhibits in court could not be used as a base for the calculations. See our decision in Mhubiri Rogega Mong'ateko v. Mak Medics Ltd [2022] TZCA 3066, where the Court reiterated the long-standing principle that documents not admitted in evidence cannot constitute part of the evidence in court. As to the basis of the award, we had an akin situation in Gladness Gasper Kileo & Others v. HJF Medical Research International Inc., [2025] TZCA 818, where was stated thus: "In our jurisdiction ; when a fixed-term employment contract is terminated before its expiry date, the employee is generally entitled to compensationspecifically the salary for the remaining period of the contract. This principle is based on the understanding that the employer's premature termination constitutes a breach o f contract, and the employee's loss of salary for the unexpired term is a foreseeable consequence." [Emphasis supplied] The principle was restated by the Court in Jordan University College v. Mark Ambrose [2024] TZCA 433, where the Court stated that termination of a fixed-term contract without compliance with the law attracts compensation for the unexpired portion of the contract. In our case the unexpired portion of the contract was the contract which was to start on 30.07.2017 and extend up to 30.07.2020 covering a period of 36 months. We thus agree with the learned advocate that the findings of the High Court were erroneous. 8 That said, we allow the appeal with the effect that, the judgment of the High Court in Labour Revision No. 21 of 2019 is vacated and set aside. The decision of the CMA is restored. This being a labour matter, 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 Judgment delivered this 12th day of May, 2026 in the presence of the Appellant in person vide video conference, Mr. Samwel Mahuma, learned State Attorney for the Respondent who was in Court and Ms. Rehema Makakala, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 9