Eunice Ndelelio Chiume vs NMB Bank PLC (Civil Appeal No. 1587 of 2025) [2026] TZCA 508 (8 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. 3.A.. MURUKE. J.A. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 1587 OF 2025 EUNICE NDELELIO CHIUME ................................................................ APPELLANT VERSUS NMB BANK P LC................................................................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (Mlvambina, J.) dated the 26th May, 2025 in Consolidated Labour Revision Nos. 5633 and 6328 of 2025 JUDGMENT OF THE COURT 15t hApril & 8t h May, 2026 MGEYEKWA. J.A.: The appellant, Eunice Ndelelio Chiume and the respondent, NMB Bank PLC, challenged the award of the Commission for Mediation and Arbitration ("the CMA") before the High Court of Tanzania at Dar es Salaam (Mlyambina, J.) in Consolidated Labour Revision No. 5633 and 6328 of 2025 delivered on 25th May, 2025. In its decision, the High Court nullified the CMA's award on the ground that the appellant, being a probationary employee at the time she was issued with the non-conformation letter could not claim unfair termination. i The essential facts of the case, as succinctly summarised by the learned judge in his judgment, go as follows: on 4th May, 2020, the appellant was recruited and engaged by the Respondent as Head of Communications and Corporate Affairs (level 7) through a contract of employment dated 25th March, 2020. The contract was for an unspecified period subject to confirmation upon successful completion of six-months probation period. The appellant's probation was extended for eighteen months. Thereafter, the Respondent was issued a letter of non-confirmation. Aggrieved by the respondent's decision, the appellant referred the matter to the CMA claiming for unfair termination, discrimination, breach of contract and unfair labour practice. The CMA found the termination was both substantively and procedurally unfair, and awarded the appellant 12 months' salary as compensation for unfair labour practice. Being aggrieved by the CMA decision, the appellant and the respondent filed a cross-appeal before the High Court. In his judgment, the learned Judge disagreed with the CMA's findings and was of the view that the claims presented by the appellant before the CMA, as per CMA FI were incompatible due to the nature of the employment contract, the appellant being a probationary employee cannot sue for unfair termination and the dispute was 2 improperly initiated before the CMA by combining incompatible prayers. The learned Judge further held that the appellant was on probation at the time of her termination, therefore, she had no legal basis to lodge a complaint of unfair termination against the respondent. In the result, the learned Judge granted the Revision Application No. 5633 of 2025 filed by the respondent. The learned Judge nullified and set aside the CMA award dated 7th February, 2025. Further, he dismissed the Revision Application No. 6328 of 2025 for being devoid of merit. The appellant has preferred the present appeal to the Court seeking to assail the decision of the High Court on five grounds of grievance; namely: 1. That, the Honourable Judge erred in law and fact by concluding that the respondent was still a probationer at the time o f termination, despite dear evidence that the respondent had been in uninterrupted employment for a period exceeding twenty-three months after the expiry o f the probationary term. 2. That, the Honourable Judge erred in law by finding the claims incompatible solely because the appellant was considered a probationer at termination, disregarding evidence o f continuous employment beyond the contractual and statutory probationary period. 3 3. That, the Honurab/e Judge erred in law in holding that the appellant, being a probationary employee, lacked a legal basis to challenge termination, while disregarding the fact that the Appellant had been employed continuously for over twenty-three (23) months without formal confirmation, thereby entitling the Appellant to protection against unfair termination. 4. That, the Honourable Judge erred in law by nullifying the CMA's Award without considering the fact that the CMA failed to determine issues raised at the CMA. 5. That, the Honourable Judge erred in law and in fact by failing to order a trial de novo to enable the appellant to be fully heard on the issues which were not determined by the CMA. At the hearing of the appeal before us, the appellant was represented by Ms. Ernestilla Bahati, learned counsel assisted by Ms. Loveness Mubezi, learned counsel whereas Mr. Paschal Kamala, learned counsel, represented the respondent. Before the hearing, Ms. Bahati withdrew her intention to argue the fifth ground of appeal. Both learned counsel lodged written submissions either in support or in opposition to the appeal which they, respectively, fully adopted during the hearing. We propose to commence with the fourth ground, which touches on a procedural issue and raises the question whether the CMA determined all the issues framed by the parties. 4 As to the fourth ground, Ms. Bahati contended that the learned Judge erred in nullifying the CMA award without appreciating that it had failed to determine all issues properly raised before it. She clarified that the record of appeal shows that the award left unresolved several substantive issues expressly pleaded and argued by the parties, as reflected in the Complainant's Reply to the Preliminary Objection (pp. 708-713) and the Final Submissions (pp. 728-748). The learned counsel for the appellant further submitted that it is settled law that a judicial or quasi-judicial tribunal is duty- bound to determine all issues duly framed for its consideration. In support, she relied on Alisum Properties Limited v. Salum Selenda Msangi (Administrator of the Estate of the late Salenda Ramadhani Msangi), Civil Appeal No. 39 of 2018 [2022] TZCA 389. On that basis, she urged the Court to quash and set aside the CMA Award and allow the appeal. In response, the learned counsel for the respondent contended that the learned Judge was correct in nullifying the CMA award on the ground that the proceedings before the CMA were incompetent for want of jurisdiction, the dispute having concerned remedies for unfair termination while the appellant was still under a probationary contract. However, in his oral submissions, Mr. Kamala took a different stance and argued that the 5 arbitrator's failure to determine the framed issues was fatal to the proceedings, and that the appropriate remedy in the circumstances would be to remit the matter to the CMA for a rehearing. Having considered the rival submissions, we are of the settled view that the determination of this ground of appeal turns on a single issue, namely, whether the CMA failed to determine the issues as framed by the parties. It is a well-established principle that the framing of issues in civil proceedings is a requirement of the law. The practice entails that, after identifying the points of fact and law upon which the parties are at variance, the trial court or tribunal is obliged to frame issues for determination, upon which its decision must be founded. In labour disputes, this requirement is specifically provided for under Rule 24 (4) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, Government Notice No. 67 of 2007 (the Labour Institutions Rules), which enjoins the arbitrator to narrow down the issues in dispute as far as practicable and to explain the purpose thereof to the parties. The object of this requirement is to streamline the proceedings and eliminate the need for unnecessary evidence on matters not in contention. The Court, in Wilfred Maro v. Sarah Lotti Mbise & Others. 6 Civil Appeal No. 64 of 2020 [2022] TZCA 738, underscored the importance of framing and determining issues in dispute, holding that: In the case of the Court held that: "It is cardinal principle in our jurisdiction that the decision o f the court must be based on the issues framed by the court and agreed upon by the parties and that failure to do so may have the effect o f miscarriage o f justice (See Hood Transport Company Limited v. EastAfrican Development Bank, CivilAppeal No.262 o f 2019 (unreported)" See also, Chantal Tito Mziray & Another v. Ritha John Makala & Another, Civil Appeal No. 59 of 2018 [2020] TZCA 1930. In the present case, it is not in dispute that, in compliance with rule 24(4) of the Labour Institutions Rules, the parties made their opening statements and duly framed issues for determination. The complainant framed four issues namely, one, whether there was breach of contract if employment between the complainant and the respondent; two, whether there was termination of contract of employment by the respondent; three, whether the actions of the respondent amounted to discrimination and four, whether the actions of the respondent amounted to unfair labour practice. 7 On the other hand, the respondent framed three issues, one, whether the employer had a valid reason not to confirm the complainant's employment; two, whether the employer followed a fair procedure to non confirmation of complainant's employment; and three, to what reliefs are the parties entitled to. The record further reveals that, upon framing those issues, the hearing proceeded and witnesses were heard. However, it is evident that the arbitrator did not narrow down with the parties the issues so framed before proceeding with the hearing. Notwithstanding that omission, the parties, in their closing submissions, addressed the very issues earlier framed. A careful scrutiny of the award shows that, although the arbitrator acknowledged that issues had been framed by the parties, he departed therefrom and framed the following issues; one, whether the actions of respondent amounted to unfair labour practice, two, whether the employer had a valid reason not to confirm the complainant's employment, three, whether the employer followed a fair procedure in the non-confirmation of the complainant's employment and four, what reliefs are the parties entitled to. It is apparent that the issues framed by the complainant touching on termination of contract and discrimination were not determined. This 8 omission, in our considered view, forms the gravamen of the appellant's complaint. Being guided by the authorities cited earlier on, it is our considered view that, by failure to narrow down the issues as framed by the parties, the arbitrator fell into error, thereby rendering the award defective. More significantly, the High Court, in its judgment, proceeded to determine the issue of unfair termination which had not been addressed by the CMA. In the circumstances, it is evident that the parties' real controversy remained unresolved. (See Truck Freight (T) Ltd v. CRDB Ltd, Civil Application No. 157 of 2007 (unreported)). This ground is therefore meritorious and, in our view, it is sufficient to dispose of the appeal. Consequently, we find it unnecessary to consider the remaining grounds of appeal. On the way forward, while the appellant urged us to quash the CMA award and allow the appeal, the learned counsel for the respondent invited the Court to quash both the CMA award and the High Court judgment and to remit the matter to the CMA for rehearing. We find merit in the latter submission. Accordingly, we nullify the proceedings before the High Court and the CMA from the stage immediately following the framing of issues, quash the lower courts decisions, and set aside all consequential orders. 9 Consequently, we direct that the case be remitted to the CMA for reconsideration and determination of the issues as framed by the parties and confirmed by the CMA. The arbitral rehearing shall be expedited and conducted within two months before a different arbitrator. The appeal succeeds to the extent herein stated. This being a labour matter, we do not make any order as to costs. It is so ordered. DATED at DAR ES SALAAM this 6th day of May, 2026. G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 8th day of May, 2026 in the presence of Ms. Loveness Denis, learned counsel for the appellant who appeared virtually, Ms. Ester Msangi, learned counsel for the respondent and Ms. Nise