Martin Peter Mosha vs NMB Bank PLC (Civil Appeal No. 515 of 2022) [2026] TZCA 510 (8 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. J.A.. MURUKE. J.A.. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 515 OF 2022 MARTIN PETER MOSHA..................................................................APPELLANT VERSUS NMB BANK P L C ........................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mteule. J.^ dated the 30th day of June 2022 in Labour Revision No. 141 of 2021 JUDGMENT OF THE COURT 22ndApril & May 2026 NDIKA. 3.A.: The appellant, Martin Peter Mosha, contests the judgment rendered by the High Court of Tanzania, Labour Division at Dar es Salaam on 20th June 2022 in Labour Revision No. 141 of 2021. The High Court vacated an award issued by the Commission for Mediation and Arbitration ("the CMA") sustaining the appellant's unfair termination claim against the respondent, NMB Bank PLC. Briefly, the appellant, employed by the respondent as Head of Credit, was terminated on 20th February 2019 for alleged gross misconduct after allegedly altering a credit application contrary to the advice of the credit analyst. The CMA found the termination substantively and i procedurally unfair and awarded TZS 445,669,461.60 being remuneration for twenty-four months at the monthly rate of TZS 18,569,560.90. Upon revision lodged by the respondent, the High Court affirmed the determination by the respondent's Head Office Disciplinary Committee that the appellant had deliberately concealed pertinent information with intent to deceive. The behaviour was deemed grossly dishonest, warranting termination. The court acknowledged that the respondent had investigated the matter prior to the disciplinary hearing. However, it determined that there was no unequivocal obligation to supply the investigation report to the appellant or present it during the disciplinary hearing. Overall, the court was satisfied that the appellant had the opportunity to defend himself against the disciplinary charges. The court ultimately annulled the CMA's award and ordered that the appellant be paid only statutory terminal benefits. Mr. Daniel Welwel, learned counsel, who collaborated with Ms. Blandina Kihampa to represent the appellant, originally premised the appeal on four grounds: 1. The High Court erred in iaw in finding that the respondent had a valid and fair reason for terminating the employment. Specifically, the court below erroneously held that: (i) the impugned credit application was declined because o f bad credit history o f the applicant's directors; 2 (ii) The appellant removed the bad credit history from the credit application; (Hi) The alteration (removal o f bad credit history) was a disrespect to professional advice regarding forged collateral; and (iv)The appellant admits commission o f misconduct. 2. The High Court erred in law in finding that the appellant's termination was procedurally fair. Specifically, the court below erroneously held that: (i)The only debated aspect o f procedural fairness is the appropriateness o f not serving notice on the appellant. (ii)The law does not require investigation report to be shared with the appellant. (iii)The respondent was right in not tendering investigation report as evidence. (iv)The disciplinary committee was properly constituted. (v)The principles o f naturaljustice were adhered to. 3. The High Court Labour Division neither subjected the evidence to judicial scrutiny nor properly re-evaluated it as required by law. 4. The judgment o f the High Court Labour Division is otherwise faulty. Prior to the hearing of the appeal, Mr. Welwel abandoned the fourth ground of appeal and requested a reorganisation of the remaining grounds. At the outset, we queried if the remaining grounds of appeal consist of pure points of law in line with section 58 of the Labour Institutions Act, Cap. 300 R.E. 2002 ("the LIA"), which stipulates that an appeal to this Court regarding a labour matter lies solely on a point of law. Mr. Welwel replied in the affirmative, contending that the grounds question the High Court for misapprehending the evidence on record and rendering unsupported findings. He relied on Atlas Copco Tanzania Ltd v. Commissioner General, Tanzania Revenue Authority [2020] TZCA 317; Public Service Social Security Fund v. Siriel Mchembe [2022] TZCA 284; and Hassan Marua v. Tanzania Cigarette Company Limited [2022] TZCA 491 for the definition of a point of law as well as the proposition that a point of law does not exist in a vacuum. Conversely, Mr. Paschal Kamala, learned counsel for the respondent, ardently contended that the said grounds of appeal consist of factual assertions rather than pure points of law. He referenced Patrick Magologozi Mongella v. The Board of Trustees of The Public Service Social Security Fund [2022] TZCA 216; Ladislaus S. Ngomela v. The Treasury Registrar & Another [2022] TZCA 265; Regina Moshi v. The Board of Trustees of The National Social Security Fund (NSSF) [2022] TZCA 292; and Bahari Oilfield Services EPZ Ltd v. Peter Wilson [2021] TZCA 250 to support his submission, imploring us to disregard the said grounds. In the case of CMA-CGM Tanzania Limited v. Justine Baruti [2021] TZCA 256, the Court adopted in a labour dispute the definition of a point of law in tax matters as expressed in the cases of Atlas Copco {supra)) and Kilombero Sugar Co. Ltd v. Commissioner General (TRA) [2020] TZCA 308 as follows: "Thus, for the purpose o f section 25 (2) o f the TRAA, we think, a question o f law means any o f the following: first, an issue on the interpretation o f a provision o f the Constitution, a statute, subsidiary legislation or any legal doctrine on tax revenue administration. Secondly, a question on the application by the Tribunal o f a provision o f the Constitution, a statute, subsidiary legislation or any legal doctrine to the evidence on record. Finally, a question on a conclusion arrived at by the Tribunal where there is failure to evaluate the evidence or if there is no evidence to support it or that it is so perverse or so illegal that no reasonable tribunal would arrive at it". As we held in CMA-CGM Tanzania Limited {supra), the above definition would apply mutatis mutandis to labour appeals to the Court. In Serengeti Breweries Limited v. Commissioner General, Tanzania Revenue Authority [2025] TZCA 685, we emphasized that merely claiming that the lower court or tribunal failed to evaluate the 5 evidence on record does not represent a pure point of law. We stated further that: .. if the Court has to ask itself whether the point is the one o flaw or fact, or if determination o f the nature o f the complaint in order to discover whether it is a point o f law or fact, has to be preceded by a long detailed process o f reasoning and detailed arguments and counter arguments, the Court has no jurisdiction to determine such a point; it is not a pure point o f law [...] to be a question o f law, the complaint must not be one that invites the Court to re-open factual issues in order to support the appeal". We entertain no doubt that the standpoint in the decisions will equally pertain to the application of section 58 of the LIA. In view of the foregoing elaboration, we find no difficulty in holding that the third ground of appeal above, faulting the High Court for not scrutinizing or re-appraising the evidence, as nothing but a factual contention - see Serengeti Breweries Limited {supra). For it alleges no misapprehension of the evidence or that certain finding is unsupported by evidence. Nor does it suggest that a certain factual finding is so egregious or so illegal that it should not be left to stand. We thus dismiss the third ground of complaint. 6 After reflecting on the first and second complaints, we resolved to consider them upon a narrow compass: one, whether the High Court misapprehended the evidence in finding that the respondent had a valid and fair reason for terminating the employment. And two, whether the termination adhered to procedural fairness. Before addressing the above criticisms, it is beneficial to clarify the facts. As disclosed on page 1875 of the appeal record, the presiding judge adjudicated the matter under the belief that the Disciplinary Committee found the appellant guilty solely of the first count of gross misconduct for concealing information with the intent to mislead the bank by directing the credit analyst to eliminate the adverse credit history of the credit applicants. Consequently, she concentrated solely on that charge. The disciplinary hearing report dated 20th February 2019 (exhibit D18), located on page 1090 of the record of appeal, clearly indicates that the appellant was adjudged guilty on the first and second counts of information concealment and wilful neglect of legal advice respectively. "The Committee found him guiity o f gross misconduct for concealing information with an intent to mislead the bank by instructing the credit analyst to remove bad credit history o f the applicants o f the Letter o f Credit facility from the Credit Application (CA) while knowing that it was an important aspect for consideration in further decisions by the Credit Committee (Credco). He 7 also wilfully ignored the legal advice o f keeping disbursement o f their facility on hold pending formal confirmation o f the forged collateral documents whereby on 21st January 2019 contrary to the advice he introduced in the Credco meeting the Draw Down Request Memo requesting issuance o f partial amount o f USD 450,000.00". Given that the High Court did not address its mind to the second count, we are compelled to consider and determine the grounds of appeal insofar as they relate to the first count. Before delving into the issues in this matter, we think it is necessary to note the following facts: first and foremost, it is undisputed that on 20th October 2018, Bens Agro Star Co. Ltd submitted to the respondent a request for a Letter of Credit amounting to USD 2,330,000.00 for the importation of cotton pesticides. The application was managed by the Relationship Manager for Agribusiness, Mr. Francis W. Mallomo, who prepared the credit application and presented it to the Credit Manager, Mr. Thomas Chaya. Subsequently, Mr. Chaya assigned Credit Analyst Mr. Zebedayo Mgini to evaluate the application and offer recommendations. The Credit Analyst, citing compelling business rationale, recommended the rejection of the application on four specific grounds. First, the Credit Analyst indicated that in May 2018, Bens Agro Star Co Ltd solicited a Letter of Credit facility for USD 1,342,000.00 to fund the 8 acquisition of cashew pesticides. The Credit Department assessed the application and rejected it due to the company's precarious financial status compared to the value of the Letter of Credit and the prior loan default history of the company's directors. During the 23rd Wholesale Credit Committee (Credco) meeting on 28th May 2018, the Agribusiness Relationship Manager, Mr. Mallomo, withdrew the application. Thus, the application was not discussed or approved by the Credco. Secondly, in May 2015, Mr. Richard Benson, a director of Bens Agro Star Co Ltd, received financing amounting to TZS 30,000,000.00 from the Kariakoo Branch to procure agricultural supplies, with an anticipated maturity date in May 2016. An outstanding amount of TZS 16,285,818.00 was written off due to Mr. Benson's default. It was later established that the guarantor had sold the collateral without any prior notification to the bank. Thirdly, in February 2016, Mr. Patrick Mwalunenge, another director of Bens Agro Star Co Ltd, received financing amounting to TZS 30,000,000.00 from the Mlimani City Branch to procure agricultural inputs, with an anticipated maturity date in February 2017. An unpaid sum of TZS 7,822,056.00 was written off, the bank having been unable to recoup it through auction since it was subsequently discovered that the pledged property was owned by an individual who was not the guarantor. 9 Finally, the Credit Analyst noted that directors Mr. Richard Benson and Mr. Patrick Mwalunenge were previously directors of Agripro Tanzania Ltd, which had a loan facility from NMB Bank PLC characterised by a deficient repayment history. The loan facility was relinquished to the Special Asset Management Department prior to its subsequent acquisition by FNB Bank. The appellant purportedly directed the Credit Analyst in writing to omit the information that the same applicant company had sought a Letter of Credit in May or June 2018, which was subsequently denied. His guidance obscured a negative background and the applicant's character, which were crucial for subsequent considerations, including those of the Credit Committee. On 15th November 2018, the appellant organised a meeting with Mr. Mallomo and Mr. Mgini, during which they consented to amend the credit application. Mr. Mallomo, submitted the revised credit application to Credit Analyst Mr. Mgini, who reluctantly endorsed the application contingent upon the satisfaction of criteria established in the said meeting. Subsequently, the appellant personally evaluated, ratified, and incorporated the updated credit application into the Credco meeting. On 19th November 2018, Credco rejected the facility, stipulating that it could only be reconsidered if there was a cash cover to support the requested amount. 10 On 28th November 2018, the Relationship Manager resubmitted the credit application to Mr. Chaya, with the appellant copied on the email. He designated Mr. Chaya to deal with the resubmitted credit application. The next day, Mr. Chaya submitted the credit application to Mr. Demetus Kamguna, Senior Manager: Credit, for evaluation. The appellant, instead, evaluated the new credit application, rendering it unreviewable by Mr. Kamguna. Moreover, it was asserted that the appellant wilfully disregarded the opinions and recommendations provided by the analyst, Mr. Chaya, whose assessment corroborated the initial conclusion rendered by Mr. Mgini in his analysis. Instead, he allegedly positioned himself as both the analyst and the reviewer of the application, in violation of the Credit Assessment and Approval Procedure. Furthermore, in the said review, the appellant implied that Mr. Mgini had assessed the credit application by affixing his name to the document, although being aware that Mr. Mgini was on leave. The application was resubmitted with additional collateral unbeknownst to Mr. Mgini, and the appellant bolstered the case by rationalising deficiencies that warranted its disqualification. On 11th January 2019, while processing the said letter of credit application, the Legal Department informed all relevant officials, including the appellant, to suspend the payout process pending official verification li of the allegedly fabricated collateral documents. On 15th January 2019, the Registrar of Titles verified that the certificate of occupancy with title number 114350 pertaining to Plot No. 132, Block D, Tegeta, Dar es Salaam was fraudulent. Despite the explicit guidance from the Legal Department and the Credit Administration Unit's recommendation against advancing with the disbursement procedure, the appellant presented a Draw Down Request Memo at the Credco meeting on 21s t January 2019, seeking the issue of a partial amount of USD 450,000.00. In his response to the disciplinary charge (exhibit D16), the appellant stated that, in agreement with the Credit Analyst's recommendations, he instructed further inquiries or verification on the facts that influenced the negative recommendations in the opinion made by the Credit Analyst. He admitted that, at his behest, the Credit Analyst convened a meeting on 15th November 2018 with Mr. Mallomo and himself to iron out and verify the information presented in the application. Following the meeting, Mr. Mallomo reviewed the application and resubmitted it on 16th November 2018 to the Credit Analyst Mr. Mgini who revised it on the same day and forwarded it to him (the appellant) with his positive but conditional recommendations for further analysis. The appellant also acknowledged having worked on the application after it was resubmitted on 28th November 2018 before it was reviewed 12 by Mr. Kamguna as it should have ordinarily been the case. He explained that, since he had worked on the initial application that was now being revisited, it was only logical for him to continue with the review to completion. That course would have allowed consistency in the analysis of both the information previously worked on and that sought to have been introduced. In the premises, the appellant denied having concealed information with intent to mislead the bank or having instructed bad credit history of the applicant being removed from the application. He said that his instruction was for removal of irrelevant information put by the Credit Analyst. We begin with the first issue whether the High Court erroneously interpreted the evidence in concluding that the respondent had a legitimate and justifiable reason for terminating the appellant's employment. On this issue, Mr. Welwel's argument was essentially threefold. First, that the appellant did not conceal bad credit history of the applicant except that he instructed the Credit Analyst to verify information contained in his opinion and remove irrelevant information that influenced his negative recommendation. Secondly, that the bad credit history applicant's directors of the year 2008 was no longer relevant given that the said directors had recently been cleared and issued with a Letter of Credit of TZS 110,000,000.00. Finally, that the High Court erroneously concluded 13 that the appellant admitted having made changes in the credit application contrary to the Credit Analyst's opinion. There was no such evidence on record. Conversely, Mr. Kamala cited the testimonies of two witnesses for the respondent: first, DW1 Mr. Stephen Mathias Mahende, the respondent's Forensic Investigation Officer, who examined the allegations against the appellant and produced a report; and second, DW2 Mr. Kamguna, Senior Manager of Credit, who worked under the appellant. Both witnesses asserted that Mr. Mgini's initial assessment of adverse credit history of the two directors of the applicant company was crucial for Credco's consideration. Eliminating such negative background rendered it impossible for the committee to appreciate and evaluate the directors' character. The bank, therefore, faced significant risk in granting the requested loan to a company whose directors are proven loan defaulters and recognised miscreants who submitted counterfeit securities. We have examined the evidence on record, the contested judgment, and the arguments presented by the parties. According to the appellant's account, after obtaining the loan application, he directed the loan Analyst to do "further enquiries or verification" regarding the factors that contributed to the negative recommendations in the opinion provided. A meeting was subsequently called at the appellant's behest on 15th November 2018, with Mr. Mgini, Mr. Mallomo, and the appellant, to clarify 14 and confirm the information submitted in the application. Following the meeting, Mr. Mallomo amended the application and resubmitted it on 16th November 2018 to Mr. Mgini, who evaluated it the same day and forwarded it to the appellant with his favourable albeit conditional recommendations for further analysis. It is unequivocal that, at this juncture, the adverse credit history of the applicant company's directors had been disregarded. In his defence, the appellant asserted that the credit background was immaterial at that time. The current loans of the directors were to be settled prior to the issue of a new Letter of Credit amounting to TZS 110,000,000.00. Both DW1 and DW2 stated that the said information was an important factor to be considered by Credco. We concur with Mr. Kamala that concealing such information from Credco would have constituted a perilous endeavour. The appellant admitted to having worked on the application after its resubmission on 28th November 2018, prior to its assessment by Mr. Kamguna, as would typically be expected. At this juncture, he purportedly assumed the role of Mr. Mgini (Credit Analyst) and functioned as a reviewer, in violation of the established protocol that delineates the responsibilities of the analyst and reviewer. The Disciplinary Committee justifiably dismissed his assertion that, having worked on the initial application currently under review, it was natural for him to see the review 15 through to conclusion. DW1 rightly testified that the appellant's conduct, acting as if he was Mr. Mgini, amounted to impersonation. Despite the High Court's erroneous assertion that the appellant "admitted committing misconduct," we think that the appellant's role in preventing the bad credit history of the directors featuring in the application is, based on the evidence on record, so preponderant. We, therefore, respectfully disagree with Mr. Welwel's assertion that the High Court misinterpreted the evidence. On this basis, we uphold the High Court's finding that the impugned termination was substantively fair. We turn to the second issue; whether the High Court erred in law in finding that the appellant's termination was procedurally fair. On this issue, Mr. Welwel faulted the High Court on four aspects. First, that the court failed to hold that the respondent violated rule 13 (2) and (3) of the Employment and Labour Relations (Code of Good Practice) Rules, Government Notice No. 42 of 2007 ("the Code of Good Practice Rules"). While subrule (2) enjoins the employer to notify the employee of the allegations against him in clear and comprehensible language, subrule (3) entitles the employee to a reasonable time, not normally less than forty- eight hours, to prepare for the hearing and to be assisted in the hearing by a trade union representative or fellow employee. It was contended that the respondent did not serve any notice of the allegations on the appellant. 16 Mr. Kamala correctly asserts that the current complaint is inconsistent with the record. The appellant was served with a three-count "Disciplinary Charge Sheet" dated 5th February 2019 (exhibit D15), as documented on pages 1068 to 1071 of the record of appeal. Additionally, he received a written notification (exhibit D17, revealed on page 1082 of the appeal record) on 13th February 2019, summoning him to a disciplinary hearing set for 15th February 2019, two days later. It is observed that although he acknowledged receipt of exhibit D17 by affixing his name and signature, he failed to do so for exhibit D15. Nonetheless, it is clear from pages 14 and 15 of the appeal record that he acknowledged in paragraph 2 of his opening statement that he got the charge sheet on 5th February 2019. Accordingly, he successfully drafted and submitted his response to the disciplinary charge on 11th February 2019 (exhibit D16 located on pages 1072 to 1080 of the record of appeal). On this basis, we are certain that the complaint at hand is plainly unfounded. The next procedural grievance is that the High Court wrongly decided that the law does not require investigation report to be shared with the employee nor does is mandate its tendering as evidence. To be sure, the learned High Court judge held as follows: '7 could not find a provision o f iaw which makes it a mandatory requirement for the investigation report to be shared with the employee. Tendering it to the disciplinary committee or to the [CMA] is 17 a matter o f choice o f the [employer]. I f there was another evidence which was sufficient to establish the case against the [employee], the [employer] was right not to tender it as evidence". Both counsel acknowledge that rule 13 (1) of the Code of Good Practice Rules imposes an obligation on the employer to conduct investigation to ascertain if there are grounds for a disciplinary hearing to be held. Although Mr. Welwel conceded that rule 13 does not impose a legal requirement for the investigation report to be shared with the employee or being tendered in evidence, he contended that the principles of natural justice demand that such report be shared and introduced into the evidence at the disciplinary hearing given that it was the foundation upon which the disciplinary charges were made. He referred to rule 13 (5) of the Code of Good Practice Rules, which stipulates thus: "13. -(5) Evidence in support o f the allegations against the employee shall be presented at the hearing. The employee shall be given a proper opportunity at the hearing to respond to the allegations, question any witness called by the employer and to call witnesses, if necessary". Mr. Welwel asserted that, without the report the appellant could not adequately prepare his defence or gather evidence to rebut the employer's case. Citing In Re Application by Simeon Manyaki; In Re Executive Committee and Council of the Institute of Finance Management 18 [1984] T.L.R. 304 and Abbas Sherally & Another v. Abdul S.H.M. FazaI boy, Civil Application No. 33 of 2002 (unreported), he argued that a violation of a party's right to be heard renders the decision involved a nullity. Mr. Kamala disagreed with his learned friend. He was resolute that the said rule 13 does not create a statutory obligation to share or tender an investigation report at the disciplinary hearing. He urged us to be persuaded by the decision of the High Court, Labour Division in Geita Gold Mining Limited v. Tenga B. Tenga [2022] TZHC 814 where Tiganga, 1, held that there is no statutory requirement under the Code of Good Practice Rules for an employer to supply the accused employee with a copy of the investigation report prior to the disciplinary hearing. The court in Geita Gold Mining Limited {supra) elaborated that, what the said rules require is for the evidence collected during investigation being tabled at the disciplinary hearing so that the employee may effectively cross-examine witnesses. Tiganga, J. found that evidence was tabled, and the respondent was not prejudiced, so the CMA erred in finding procedural unfairness solely for the omission to supply the investigation report. He added that Tiganga, J.'s determination was quoted with approval by this Court in Ovadius Mwangamila & Others v. Tanzania Cigarette Company Limited [2025] TZCA 361. 19 Mr. Kamala conceded that in Severo Mutegeki & Another v. Mamlaka Ya Maji Safi Na Usafi Wa Mazingira Mjini Dodoma (DUWASA) [2020] TZCA 310, this Court held that the appellants were denied a fair hearing because they were not involved in the internal audit process and were not supplied with the full audit report. However, he submitted that the decision was incomparable to the present case since it concerned an audit report as opposed to an investigation report. For him, what was important is that the same documents used as the basis of the investigation were tendered at the disciplinary hearing and that the appellant's convictions were based upon the evidence that was tendered in his presence and he had an opportunity to cross-examine on it. Initially, we agree with the advocates' concurrent assertion that the Code of Good Practice Rules does not explicitly impose a requirement on the employer to disclose or present a copy of the investigation report at the disciplinary hearing. Mr. Welwel advocated for the compulsory sharing and submission of such reports based on the principles of natural justice. In Severo Mutegeki {supra), which we followed in Kiboberry Limited v. John van der Voort [2022] TZCA 620, we concluded that excluding the accused employees from the internal audit process and withholding the complete audit report constituted a violation of natural justice principles, thereby rendering the termination procedurally unjust. Upon thorough examination of the two cases, we assert that the Court was also 20 influenced by the fact that the evidence against the employees was very insubstantial in the absence of the audit report. Subsequently, in Tanzania Cigarette Public Limited Company v. Msafiri Kibanga [2024] TZCA 800, the Court overturned the High Court, Labour Division's determination that the procedure was unfair due to the employer's failure to provide the accused employee an investigation report before the disciplinary hearing. The Court, in that case, considered but distinguished Severo Mutegeki ( supra)-. "Our decision in Severo Mutegeki (supra) is distinguishable from the instant appeal before us. We think where the respondent, like in the present appeal, had confessed to the dishonesty o ffalse sales, the failure o fthe appellant to supply him with the investigation report did notprejudice him". Indeed, as rightly argued by Mr. Kamala, the Court in Ovadius Mwangamila {supra), was persuaded by the reasoning and holding in Geita Gold Mining Limited {supra). Having considered Msafiri Kibanga {supra) and then distinguished Severo Mutegeki {supra), the Court quoted with approval the following from Geita Gold Mining Limited {supra)\ "Reading between lines the provision hereinabove [rule 13(5) o f the Code o f Good Practice Rules], it can be found that there is no requirement for 21 the employer to supply a copy o f the investigation report to the employee before the hearing takes off. What the employer is required to do according to the rules is to table the evidence collected in the course o f investigation to the disciplinary hearing so that the employee can have an opportunity to cross examine. In my considered view, tabling evidence is to present evidence formally for discussion or consideration at a meeting. It is therefore the same as adducing evidence in court or tribunal for consideration. And what is required to be tabled is the evidence collected in the course o f investigation; it is not necessary that the whole report be tabled". We feel bound to follow the position in Ovadius Mwangamila {supra). Consequently, we uphold the High Court's finding that the respondent had no obligation to share or present a copy of the investigation report before or at the disciplinary hearing. Concerning the third aspect of the matter, Mr. Welwel criticised the High Court for failing to determine that the Disciplinary Committee was improperly constituted. He asserted, referencing rule 13 (4) of the Code of Good Practice Rules, that the disciplinary hearing should have been presided over by a suitably senior management representative who was not involved in the circumstances leading to the dispute. The respondent's Human Resources Policies manual (exhibit D14) designates the Chief Risk 22 Officer as the chairperson of the Head Office Disciplinary Committee, and in his absence, the committee must appoint a chairperson from among its members. The learned counsel referenced page 81 of exhibit D14, located on page 504 of the appeal record, which discloses the committee's membership. He criticised the respondent for permitting Mr. Aziz Chacha, its Treasurer, to preside over the proceedings. He contended that Mr. Chacha was neither a member of the committee nor particularly designated to oversee the proceedings. In contrast, Mr. Kamala, referring to page 1518 of the record of appeal, argued that DW2 explained in cross-examination why the Chief Risk Officer did not chair the committee. He averred that, following a review of the Human Resources Policies manual (exhibit D14) in 2019, the Treasurer was designated as the committee's chairperson, a position that he held at the time of the disciplinary hearing. Besides, he submitted that, given that the Chief Risk Officer was the appellant's immediate supervisor it was even more prudent for the Treasurer being appointed to preside over the hearing in accordance with the Code of Good Practice Rules to avoid conflict of interest. Initially, it is essential to note that when a committee, tribunal, or any other body neglects to adhere to the statutory or requisite criteria for its composition or constitution, it is a fundamental error rather than a 23 trivial procedural infraction. An improperly constituted committee or tribunal lacks the competence and jurisdiction to perform its functions, hence rendering its proceedings and decisions null and void. We have examined exhibit D14 on page 504 of the appeal record cited by Mr. Welwel. It is definitely accurate that the Chief Risk Officer is designated as the chairperson of the Head Office Disciplinary Committee and is responsible for presiding over all committee sessions. There is, however, no reference to the Treasurer as a member of the committee. It is explicitly mentioned that if the chairperson is absent from any meeting, the committee shall elect a chairperson from the members present at that meeting. Although we concur with Mr. Kamala that DW2 clarified during cross-examination that the Treasurer was appointed as the committee's chairperson after a review of the Human Resources Policies manual (exhibit D14) in 2019, DW2 acknowledged that the updated manual was not tendered as evidence. The appellant asserted in paragraphs 7 and 8 of his opening statement at the CMA that the committee was improperly formed; therefore, the respondent bore the burden from the outset to present evidence to the contrary. Remarkably, the respondent failed or neglected to submit the purported updated manual to validate its assertion that the Treasurer appropriately and legitimately conducted the disciplinary process. 24 There is no doubt that the Disciplinary Committee, wrongly constituted as explained, embarked on a wild goose chase from the outset of the disciplinary proceedings. The process was obviously a protracted and ultimately futile pursuit. Regrettably, the High Court did not directly confront and decide this issue, despite its significant prominence in the arbitral proceedings. On this basis, we uphold Mr. Welwel's submission and find that the committee was improperly constituted, vitiating the entire disciplinary procedure. The disciplinary proceedings and decisions were rendered a nullity. Finally, on the claim that the appellant's disciplinary proceeding violated the norms of natural justice, Mr. Welwel articulated two arguments. Initially, he asserted that the Disciplinary Committee obtained the expert testimony of Mr. Alex Mgeni, yet it failed to provide the appellant with the opportunity to cross-examine the expert. He asserted that the said course of conduct violated the appellant's right to a fair hearing as provided by Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, Cap. 2. To substantiate his argument, he referenced several decisions of the Court, including Abbas Sherally {supra), Hamisi Rajabu Dibagula v. Republic [2003] T.L.R. 251, and Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R. 251. 25 Furthermore, Mr. Welwel insisted that following the Disciplinary Committee's determination of the appellant's guilt, it provided him no chance to present mitigating circumstances prior to imposing punishment. He asserted that this action constituted a flagrant breach of rule 13 (7) of the Code of Good Practice Rules. He cited Peter Maghali v. Super Meals Limited [2022] TZCA 217 to support his position. In response, Mr. Kamala succinctly asserted that the appellant was afforded the opportunity to defend himself before the Disciplinary Committee regarding the allegations and subsequently appealed to the Appellate Disciplinary Committee, where he was unsuccessful once more. None of his arguments in the initial appeal raised the issue that he was denied the right to cross-examine the said expert. We were, therefore, prompted to regard his criticism as an afterthought. Exhibit D18, on page 1086 of the record of appeal, clearly indicates that Mr. Mgeni, the respondent's Senior Manager: Credit Risk, attended the disciplinary hearing as a technical expert, rather than as a witness. The assertion that he provided testimony during the hearing for the respondent without undergoing cross-examination is not supported by the record. Rule 13 (7) of the Code of Good Practice Rules, cited by Mr. Welwel, imposes an obligation on the employer to offer an opportunity to the 26 accused employee to give mitigating circumstances before imposing any penalty. It provides in imperative terms as follows: " 13.-(7)Where the hearing results in the employee being found guilty o f the allegations under consideration ; the employee shall be given the opportunity to put forward any mitigating factors before a decision is made on the sanction to be imposed". To guarantee a fair, equitable, and individualised sanction instead of a uniform penalty, the guilty employee must be allowed to present mitigating factors. This procedure enables the disciplinary authority to assess the severity of the offence in relation to the employee's guilt, facilitating a fairer sanction. In this case, neither exhibit D18 nor the other documentary exhibits from the respondent demonstrate adherence to the aforesaid provision. Consequently, we consider the appellant's complaint compelling. This oversight constitutes yet another procedural error by the respondent. Concluding on the second issue, we uphold the appellant's contention that the impugned termination was procedurally unfair as explained above. Consequently, based on the preceding conclusion, we must ascertain the amount of compensation to be awarded to the appellant. Section 41(l)(c) of the Employment and Labour Relations Act, Cap. 366 27 ("the ELRA") authorises the CMA and the High Court, Labour Division, to grant compensation to the aggrieved employee amounting to no less than twelve months7 wages. As previously stated, the CMA awarded the appellant TZS 445,669,461.60 as compensation for twenty-four months at a monthly rate of TZS 18,569,560.90, determining that the termination was both substantively and procedurally unreasonable. The High Court vacated this award, finding that the termination was both substantively and procedurally fair. Although section 41(l)(c) of the ELRA, at the material time, established twelve months' remuneration as the minimum compensation for unfair termination, in Felician Rutwaza v. World Vision Tanzania [2021] TZCA 2, this Court determined that it was legally permissible for the CMA or the High Court, Labour Division, to exercise discretion and award compensation of less than twelve months' remuneration when the termination was substantively fair but procedurally flawed. The Court observed that, given the law's greater aversion to substantive unfairness compared to procedural unfairness, the remedy for the former entails a more significant disadvantage than the latter. Consequently, it was legally appropriate for the CMA or the High Court, Labour Division, to exercise discretion and award compensation of less than twelve months’ remuneration where the termination is only procedurally unjust. The Court in that case reduced the award to three months' pay from the twelve 28 months' amount determined by the CMA. See also Kenya Kazi Security (T) Ltd v. Rukia Abdallah Salum [2024] TZCA 90; and Joseph Fissoo & Others v. Ithna Asheri Charitable Hospital [2024] TZCA 190. With the foregoing in mind, we think that it would serve the interests of justice in this case that we order the respondent to pay the appellant six months' remuneration as compensation. We ultimately find merit in the appeal, which we partly allow. Consequently, we vacate the High Court's judgment and decree. This being a labour matter, we make no order as regarding costs. DATED at DAR ES SALAAM this 8th 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 Mr. Jacob Kaisi, learned counsel for the appellant who appeared virtually, Ms. Ester Msangi, learned counsel for the respondent and Ms. Nise Mwasalemba, Court clerk; is hereby certified as a true copy of the original.