Novatus Williams Nkwama vs Tanzania Union of Government & Health Employees (Civil Appeal No. 12 of 2024) [2026] TZCA 534 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE, J.A., FELESHI, 3.A. And NANGELA, J.A.l CIVIL APPEAL NO. 12 OF 2024 NOVATUS WILLIAMS NKWAMA ................. .................................... APPELLANT VERSUS TU G H E.........................................................................................RESPONDENT (Appeal from the Decision and Order of the High Court of Tanzania at Sumbawanga) (Mashauri, J.) dated the 27th day of June, 2019 in Labour Revision No. 03 of 2017 JUDGEMENT OF THE COURT 0 7 th & n th M a y ^ 2 0 2 6 NANGELA, 3.A.: NOVATUS WILLIAM NKWAMA, the appellant herein, is appealing against the decision of the High Court (Labour Division), in Labour Revision No. 03 of 2017. To appreciate the genesis of the appellant's grievances and, consequently, this appeal, it is necessary to set out briefly the relevant factual background as disclosed in the record of appeal. On 1st March, 2001, the appellant was employed by the Tanzania Union of Government and Health Employees (TUGHE), the respondent herein, as a Regional Secretary for Tabora Region. He was subsequently transferred to Sumbawanga, Rukwa Region. By a transfer letter served i

upon him on 30th October, 2012, he was required to report to his new duty station by 10th November, 2012, a directive with which he duly complied. On 3rd May, 2013, the appellant elected to terminate his employment through a letter of resignation of the same date, in which he expressly stated that the resignation would take immediate effect. Thereafter, he abandoned his office. Subsequently, by a letter dated 27th June. 2013, the respondent informed the appellant of outstanding loans he had secured from various financial institutions and required him to indicate his commitment and proposed modality for repayment following his resignation. In his response dated 15th July, 2013, the appellant asserted that his resignation had been precipitated by the respondent's conduct, which had rendered his working environment intolerable, and thus contended that he had been constructively dismissed. He further proposed that the respondent deduct the outstanding liabilities from his terminal benefits and remit any balance to him. In the alternative, he sought reinstatement on condition that he be posted to Bukoba or a nearby region, with deductions from his salary to service the loans; otherwise, the respondent should waive the debts altogether.

By a letter dated 13th September, 2013, the respondent rejected the appellant's demands, reminding him that it was he who had voluntarily resigned from employment and, therefore, reinstatement was untenable. The respondent further reminded him of his obligation to settle debts amounting to TZS 15,867,343.00. Thereafter, on 3rd October, 2013, approximately five months after leaving his duty station following his resignation, the appellant purported to rescind his earlier resignation. The respondent, however, informed him that his separation from employment had already been confirmed by the General Meeting. Aggrieved by that response, the appellant lodged a labour dispute, being Labour Complaint No. RK/CMA/SUMB/11/2015, before the Commission for Mediation and Arbitration (CMA). Upon hearing the complaint, the CMA found the appellant's claims devoid of merit. Instead, it held that the appellant was liable to reimburse the respondent a total sum of TZS 18,666,116.00, being the loan amount together with interest which the respondent had settled on his behalf with the respective creditors. Dissatisfied with that decision, the appellant filed an application for revision before the High Court of Tanzania at Sumbawanga in Labour Revision No. 08 of 2016. In its ruling dated 24th October, 2017, the High 3

Court struck out the application with leave to file a fresh one. Consequently, on 25th October, 2017, the appellant instituted Labour Revision No. 03 of 2017 before the High Court of Tanzania, Sumbawanga Sub-Registry. However, in a ruling dated 21st March 2019, the High Court dismissed the application with costs for lack of merit. Undeterred, and being out of time, the appellant subsequently filed Miscellaneous Labour Application No. 2 of 2022 seeking extension of time within which to lodge a notice of appeal. In its ruling dated 31st August, 2023, the High Court granted him fourteen days within which to file the requisite notice of appeal, which was duly lodged on 7th September, 2023. Thereafter, the appellant applied for certified copies of the proceedings and other requisite documents to enable him to institute the appeal and eventually lodged the memorandum of appeal on 3rd November, 2023. In the memorandum of appeal, the appellant advanced six grounds of appeal. However, for reasons that shall become apparent later in this judgment, we shall confine ourselves to the sixth ground only. Before doing so, it also is pertinent to note that, at the hearing of the appeal, the appellant was represented by Mr. Peter Jacob Kiranga, learned counsel,

while the respondent was represented by Mr. David Alexander Ntonge, also learned counsel. At the commencement of the hearing, Mr. Ntonge informed the Court that earlier he had raised a preliminary objection to the effect that the grounds set out in the memorandum of appeal contravened section 58 of the Labour Institutions Act, [Cap. 300 R.E. 2023], in that they were not founded exclusively on points of law. However, upon further reflection, learned counsel withdrew the objection, a course to which Mr. Kiranga raised no opposition. The objection was accordingly struck out and the hearing of the appeal on the merits proceeded. During the hearing, learned counsel for the appellant abandoned grounds 1, 2, 3, 4, and 5 on the basis that ground 6 sufficiently encompassed all the issues raised in the appeal. Learned counsel for the respondent did not object. Consequently, the appeal proceeded solely on the basis of ground 6, which, for convenience, may be reformulated as follows: 'T h a tth e learned judge o f the High Court erred in law and fact when he determ ined the application fo r revision in favour o f the respondent w hile the appellant had been denied rig h t to be heard by the Com m ission fo r M ediation and A rb itration "

When granted audience to address the Court on the above ground of appeal, Mr. Kiranga adopted his written submissions filed on 29th December, 2023 and, briefly submitted that, a review of the entire proceedings before the CMA reveals no indication that the appellant was afforded an opportunity to testify in support of his complaint. He further pointed out that the CMA did not formally close the complainant's case. Learned counsel contended that, immediately after framing the issues for determination, the CMA proceeded to hear witnesses in support of the appellant's claims without according the appellant himself an opportunity to testify. According to Mr. Kiranga, this omission amounted to a denial of the appellant's right to be heard, as guaranteed under Article 13 (6) of the Constitution of the United Republic of Tanzania. He further argued that, the testimonies of the witnesses were irregularly received, inasmuch as the learned arbitrator failed to sign the proceedings, a defect he described as fundamental. In support of that contention, he relied on the decision in Unilever Tea Tanzania Limited v. Davis Paul Chaula [2021] TZCA 760. Based on that brief clarification, Mr. Kiranga urged the Court to exercise its powers under section 6 (2) of the Appellate Jurisdiction Act, 6

[Cap. 141 R.E. 2023], to nullify both the CMA proceedings and the proceedings before the High Court, and to order a fresh hearing and determination before the CMA. For his part, Mr. Ntonge resisted the appeal. Addressing the above- mentioned ground of appeal, he first adopted his written submissions as part of his oral highlights. He contended that the CMA does not select witnesses for the parties and that it was the appellant who called witnesses but elected not to testify himself. He further submitted that nowhere in the proceedings does the record show that the appellant attempted to testify and was denied the opportunity to do so by the arbitrator. According to Mr. Ntonge, a reading of pages 99 to 113 of the record of appeal reveals that the appellant chose to rely on documentary evidence before the CMA. In his view, the appellant thereby opted to prosecute his complaint through documentary evidence in lieu of oral testimony and cannot now be heard to complain that he was denied the right to be heard. Regarding the failure to sign the proceedings, Mr. Ntonge submitted that the omission was merely procedural and occasioned no prejudice to the parties. He urged the Court to invoke the overriding objective principle

in the interest of justice. He argued that the omission to append signatures after each witness's testimony neither altered the substance of the recorded proceedings nor affected the interests of the parties. Further, when questioned by the Court on the effect of the failure to formally close either the appellant's or the respondent's case, Mr. Ntonge submitted that although he appreciated the implication of the omission, he did not consider it fatal to the proceedings. When further asked whether the arbitrator who issued the award was competent to do so without taking additional steps in the proceedings, Mr. Ntonge submitted that the arbitrator assumed conduct of the matter after the initial arbitrator had ceased to handle it. He therefore urged the Court to dismiss the appeal for lack of merit. In a brief rejoinder, Mr. Kiranga reiterated his earlier submissions and maintained that nowhere in either the proceedings or the award is there any indication that the appellant elected to have his case determined solely on the basis of documentary evidence. According to him, the documents appearing at pages 100 to 112 of the record of appeal were tendered by the respondent, not the appellant. Consequently, those documents could not have substituted the appellant's right to be heard orally before the CMA.

From the rival submissions of the parties and the ground of appeal, the issue falling for our determination is whether the appellant was denied the right to be heard and, if so, the legal consequence thereof. At the outset, it is trite that no person should be condemned unheard; fair procedure demands that both sides be accorded an opportunity to be heard — audi alteram partem . See the decision of the Court in Mbeya-Rukwa Autoparts & Transport Ltd. v. Jestina George Mwakyoma [2001] TZCA 14. In Anna Alphonce Kasembe v. Dora Kawawa Fusi & Others [2023] TZCA 17783, the Court reiterated what it stated in In Re: Independent Power Tanzania Limited v. Standard Chartered Bank (Hong Kong) Limited [2009] TZCA 286, noting that: "No decision m ust be made by any court o fju stice / body or authority entrusted with the pow er to determ ine rights and duties so as to adversely affect the interests o f any person w ithout first giving him a hearing according to the principles o f naturalju s tic e ” In the present appeal, counsel for the appellant contended that the appellant, despite being the complainant who referred the dispute to the CMA, was not afforded an opportunity to testify before the arbitrator. Mr. Ntonge, on the other hand, maintained that the appellant voluntarily 9

chose not to testify and instead submitted documentary exhibits before the arbitrator. With due respect, we are unable to agree with the submissions of Mr. Ntonge. As correctly argued by Mr. Kiranga, nowhere in the record of appeal is it shown that the appellant waived his right to testify before the CMA. Had the proceedings before the arbitrator unfolded in the manner suggested by Mr. Ntonge, the record of the CMA proceedings ought to have reflected that position. What emerges from pages 79 to 83 of the record is that only two witnesses testified on behalf of the appellant before the CMA. The appellant himself was not among them, notwithstanding the fact that he was the complainant in the dispute. In our considered view, unless the record clearly demonstrates that the appellant waived his right to testify, it cannot lightly be presumed that he elected not to do so. Moreover, and as Mr. Kiranga rightly submitted, the CMA proceedings in respect of both the complainant's and the respondent's cases were never signed and formally closed. Consequently, the record does not indicate whether any further witnesses testified either for or against the complainant after the second witness had testified. 10

In proceedings, whether before a court of law or an arbitral tribunal, once each witness finilises his or her testimony, the presiding officer must append his or signature thereto and, if there is no more witnesses to call, formally close the case for each of the respective parties. In essence, the "closure of a case" ordinarily signifies the formal conclusion of a party's presentation of evidence, witnesses, and submissions. Moreover, such closure should, as a matter of proper practice, be endorsed by the presiding arbitrator, magistrate, or judge, as the case may be, by appending his or her signature to the record. In our view, this procedural step serves several important legal and procedural purposes. First, it ensures procedural finality by formally recording that a party has concluded its case and may not thereafter adduce further evidence or call additional witnesses without leave. Secondly, it safeguards fairness between the parties by confirming that each party was afforded an equal opportunity to present its case before deliberation or determination commences. Thirdly, it guarantees the authenticity and integrity of the proceedings by creating an authenticated record. By signing the record, the arbitrator, magistrate, or judge verifies that the proceedings were conducted in his or her presence and on the stated date. See: Yohana Filipo v. Republic [2021] TZCA 314. The signed record must also include 11

all documents admitted as exhibits during the hearing. See SGS Societe Generale de Surveillance SA and Another v. VIP Engineering & Marketing Ltd and Another, Civil Appeal No. 124 of 2017 (unreported). In Yohana Filipo v. Republic (supra) the Court held that the failure to append signature to the proceedings was fatal and rendered the entire proceedings to a nullification. For clarity it stated as follows, that: "as the evidence o f a ii w itnesses in this case were not appended with the signature o f the tria ljudge, the sam e does not constitute the record o f the court or to p u t in a better perspective, the unsigned evidence is no better than the evidence that was n ot taken." Fourthly, apart from marking the transition to the next procedural stage, the formal closure and endorsement of each party's case minimise subsequent procedural disputes by confining any challenge strictly to the official record of the proceedings. Matters extraneous to that record cannot properly be introduced as part thereof. As earlier observed, the record of proceedings before the arbitrator, appearing at pages 79 to 89 of the record of appeal, shows that the learned arbitrator failed to observe these procedural safeguards by not formally closing the respective parties' cases. This omission exposed the 12

proceedings to the risk of subsequent manipulation or uncertainty and was therefore irregular. The record further discloses another serious irregularity. It appears from the record of appeal that the learned arbitrator who heard all the witnesses who testified before the CMA was Mr. Boniface Nyambo. However, the arbitral award was subsequently prepared and signed by Mr. 0. Ngaruko. The record before us neither indicates when Mr. Ngaruko assumed conduct of the proceedings from Mr. Nyambo nor discloses any reason for that change. In law, a presiding arbitrator is required to discharge certain obligations before assuming conduct of proceedings in a matter. One such obligation is compliance with rule 6(1) of the Labour Institutions (Ethics and Code of Conduct for Mediators and Arbitrators) Rules, GN No. 66 of 2007, which requires mediators and arbitrators, during introductory sessions, to disclose any conflict of interest relating to the matter before them. In the present case, the assumption of conduct of the proceedings by Mr. Nguruka was not documented, thereby raising doubt as to whether the requirements of the said rule were complied with. Moreover, the takeover of the proceedings was irregular, as no reasons were assigned 13

for it. Ordinarily, where an arbitrator, magistrate, or judge assumes conduct of partly heard proceedings — particularly where witness testimony has already been recorded — the succeeding adjudicator is required to assign reasons for the takeover and, where appropriate, consult the parties on whether to proceed from the stage previously reached or to recall witnesses. See M/s Georges Center Limited v. The Honourable Attorney General & Another, [2016] TZCA 629, and Inter-Consult Limited v. Mrs. Nora Kassanga & Another, [2019] TZCA 790. In light of the foregoing observations, the entire proceedings before the CMA were rendered a nullity, and that defect inevitably affected the subsequent proceedings before the High Court. Accordingly, as rightly submitted by Mr. Kiranga, the proper course is to nullify such proceedings. Accordingly, we allow this appeal and, in exercise of the powers conferred upon this Court under section 6 (2) of the Appellate Jurisdiction Act, [Cap. 141 R.E 2023], hereby declare the proceedings before the CMA a nullity, and consequently quash and set aside the ensuing arbitral award. Likewise, we nullify the ruling of the High Court together with the consequential order arising therefrom. 14

We further direct that the matter be remitted for retrial before a different arbitrator, in accordance with the law. There shall be no order as to costs. DATED at MBEYA on this 11th day of May, 2026. R. K. MKUYE JUSTICE OF APPEAL E.M. FELESHI, JUSTICE OF APPEAL D. I NANGELA JUSTICE OF APPEAL Judgment delivered virtually this 11th day of May, 2026 in the presence of Mr. Freius Kakulima, learned counsel for the Appellant, Mr. David Alexander Ntonge, learned counsel for the respondent and Ms. Anna Utou, Court clerk, is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 15