CHODAWU vs Ngorongoro Conservation Area Authority & Another (Civil Appeal No. 776 of 2024) [2026] TZCA 499 (7 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA rCORAM: FIKIRINI, J.A., RUMANYIKA, J.A. And ISSA. J.A.) CIVIL APPEAL NO. 776 OF 2024 CHODAWU APPELLANT VERSUS NGORONGORO CONSERVATION AREA AUTHORITY ................... 1 st RESPONDENT THE ATTORNEY GENERAL 2 nd RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania (Labour Division) at Arusha) 21st April, & 7th May, 2026 RUMANYIKA, J.A,: The appellant, The Tanzania Conservation, Hotels, Domestic And Allied Workers' Union (CHODAWU), is a duly registered Trade Union having a field branch within the work premises of the 1s t respondent, Ngorongoro Conservation Area Authority (NCAA). The NCCA is a government institution charged with the management and running of the Ngorongoro Conservation Area. There were 343 NCCA employee members of the appellant. The 1s t respondent, initially dully recognized roqan ggbJU dated the 14th day of December, 2023 in Labour Complaint No. 1 of 2023 JUDGMENT OF THE COURT

the appellant by facilitating its operations, among others, by deducting and remitting contributions monthly. Ultimately, the first respondent's employees and the appellant executed a Collective Bargaining Agreement (CBA) between themselves on 3rd January 2012, before their ties became sour in early 2019. The NCAA was allegedly transformed into being a "Para-Military Service" Organ, following the reforms made under the Written Laws (Miscellaneous Amendments) Act, No. 2 of 2020 (the Act). It had the effect of amending the existing Wildlife Conservation Act. A labour dispute arose which was referred to the Commission for Mediation and Arbitration at Arusha (the CMA). The parties successfully attempted a mediation and signed a deed of settlement, as follows: First, they agreed to abide by the consultation/engagement principle during any Paramilitary Scheme Initiation Policy. Second, the NCAA remained committed to adhering to the CBA and the existing laws applicable. Third, that before effecting or implementing the Paramilitary Scheme, they would sign a respective agreement, as appearing on page 75 of the record of appeal. Fearing of the NCAA to breach the CBA by introducing the Para- Military Scheme (the Scheme) later, CHODAWU filed an application for execution seeking an order to compel the NCAA to abide by the said Settlement Deed, vainly. The issue was escalated to the Deputy Registrar 2

of the High Court vide Application No. 53/2019. In his ruling dated October 4, 2019 the Deputy Registrar, found and held both the action taken and the reliefs sought to be improper and premature, as the Scheme was not yet operative. It was ordered, however, that still the NCAA is bound by the Settlement Deed, which required consultation with the appellant prior to introduction of the Scheme. Aggrieved by the Deputy Registrar's decision, the appellant filed Revision Application No. 88 of 2019 before the High Court of Tanzania (Labour Division) at Arusha. The application was dismissed on April 28, 2023, giving rise to the futile Labour Complaint No. 01 of 2023. In response thereto, the respondents successfully raised a preliminary objection (the objection) on the tenability of that complaint for being res judicata. That, the issue had been competently and conclusively determined in Revision Application No. 88 of 2019. The objection was sustained and therefore, the application dismissed. Further, the appellant has preferred the present appeal on two grounds, namely; One, that the learned Judge abdicated his duty for not determining the labour complaint on merit and; two, improper invocation of the doctrine of res judicata. Mr. Asubuhi Yoyo, learned counsel represented the appellant, whereas the respondents had the services of Messrs. Masunga Kamihanda and Usaje Mwambene, both learned Senior State Attorneys, teaming up 3

with Messrs. Hance Mmbando and Erasto Baluwa, learned State Attorneys. Setting the ball rolling, Mr. Yoyo, first of all adopted the appellant's written submission filed on 11/02/ 2025, as part of his oral submission, together with a list of authorities. For the first ground of appeal, Mr. Yoyo cited section 94 of the Employment and the Labour Relations Act (the ELRA), contending that, the provision was abrogated. That, the learned Judge failed to exercise the court's exclusive jurisdiction, due to wrong interpretation of the cited provision of the of law. Referring us to the respective statement of complaint found on pages 5 to 7 of the record of appeal, Mr. Yoyo faulted the learned Judge allegedly for not looking at the actual and distinctive nature of the disputes presented in the two litigations under reference. It was also contended that, the reliefs being sought and the law applicable in the subsequent litigation were actually different. That, the learned Judge ought to have resolved the matter once and for all on merit. The Court was urged to accept this complaint as being merited. About the second ground of appeal, Mr. Yoyo still faulted the learned Judge allegedly for misapprehending the record thus, arriving at the wrong conclusion. He contended that, the two litigations, that is to 4

say that Revision Application No. 88 of 2019 and Labour Dispute No. 01 of 2023 clearly bore a distinct cause of action each, as they sought different reliefs, regardless of the parties involved being substantially the same. Clarifying his point, Mr. Yoyo asserted that, in Revision Application No. 88 of 2019 the applicant sought execution of the CBA, whereas in Labour Complaint No. 01 of 2023 the court was asked to declare that Act No. 2 of 2020 is violative of the fundamental right of association guaranteed under Article 21 of the Constitution of United Republic of Tanzania. According to Mr. Yoyo, the said legislation superseded the Scheme, which is the safeguard of the Labour laws. That, had the learned Judge considered it all properly, he should have not struck out the said Labour Complaint for being res judicata. Let alone the failure to accord the parties a hearing on that aspect- Citing our decisions in Peniel Lotta v. Gabriel Tanaki & 2 Others (Civil Appeal No. 61 of 1999) [2001] TZCA 16, Mr. Yoyo urged us to hold that, due denial of the right to be heard, the resultant decision is inconsequential. He asked the Court to nullify the respective proceedings and, for that reason, to set aside the impugned decision and to remit the matter to the High Court for its determination on merit. Mr. Kamihanda in opposing the appeal, on the first point of grievance he contended that, there is no conflicting provisions between 5

the two legislations under reference. Much as the subsequent litigation was barred by the principle of res judicata, as rightly held by the learned Judge. That, the fact that in the earlier litigation before the CMA the issue was on execution of the CBA as is exhibited in the CMA Form No.l, while the subsequent litigation sought for the first respondents employees to be allowed to exercise trade union rights including the right of association, is immaterial. On the second ground of appeal, while referring to his assertions on the preceding ground of appeal, Mr. Kamihanda contended that, in both litigations the parties were substantially the same and thus, a fit case for invocation of the doctrine of res judicata . He therefore argued that the authorities cited by Mr. Yoyo are distinguishable in the circumstances of the case. Further, it was contended that, not only the dispute was filed prematurely before the CMA, but also, the appellant should have consistently sought to execute the CBA, instead of filing a afresh matter, with same cause of action, as it was done. Then, it was Mr. Mmbando's turn, taking over from where Mr. Kamihanda ended. He stressed that the learned Judge cannot be faulted for having terminated the proceedings based on the doctrine of res judicata. That, in the subsequent litigation, the appellant had pleaded violation of organizational rights and thus, asked for the court's 6

intervention on the applicability of the said Act No. 2 of 2020 versus the Scheme. It was also asserted, thus, that the reliefs sought apart, the said legislation had no effects of amending any labour laws, as alleged. He also asked the Court to find the appeal lacking and to dismiss it. Mr. Yoyo in rejoinder he reiterated his previous contentions principally. Upon hearing the learned counsel's rival submissions, and having reviewed the record, the central issue for our consideration and determination is whether the said Labour Complaint No. 01 of 2023 was resjudicata, as held by the High Court. With regard to the first ground, it is recalled, the learned Judge is faulted, allegedly for having not exercised the court's exclusive jurisdiction, giving a deserving interpretation of, and the applicability of Act No. 2 of 2020, thereby occasioning injustice. The complaint needs not detain us. In fact, as an interpreter of the law, a court of law is not considered to have abdicated its duty just because it has terminated a matter on preliminary issues, as it was done in this case. Importantly, the learned Judge upon hearing the parties he sustained the preliminary objection. That, indeed the labour complaint before him was res judicata, clearly exhibiting and dully exercising the court jurisdiction. It is also noted 7

that, in determining the said objection raised in Labour Complaint No. 1 of 2023 a cross reference was made to the proceedings in Labour Revision No. 88 of 2019 while the law applicable being cited. This is to say that, by so considering all the material presented before him and arriving at the conclusion made, the learned Judge well exercised his judicial power. Therefore, the issue of abdication of the court duty should have not been raised. Therefore, the first ground of appeal is devoid of merit, just as it is bound to fail. Concerning the second ground of appeal, the pivotal question is whether, with respect to Labor Complaint No. 1 of 2023, the doctrine of res judicata was improperly invoked. Fundamentally, under section 11 of the Civil Procedure Code (the CPC), the doctrine of res judicata primarily discourages endless litigation. See-Diocles Kamuhabwa v. Theonest Kamuhabwa (Civil Appeal No. 436 of 2022) [2024] TZCA 221. Moreover, it is equally worth noting that, for the doctrine of res judicata to apply, any court which is called upon to determine it has to satisfy itself that, at least five pre-conditions required under section 11 of the CPC co-exist, as follows: One, that the subject matter in the subsequent litigation is directly and substantially the same as one involved in the earlier litigation; two, that the previous and the present litigations involved the same parties or privies, claiming on the same matter; three, 8

that the parties in both suits/applications litigated under more or less the same title; four, the earlier litigation was decided by a court of competent jurisdiction to determine it. And; five, that the matter was heard and finally determined in the former suit/application. See-Michal Obiero v. Ager Ondiek & Another (Civil Appeal No. 422 of 2022) [2024] TZCA 584. Applying the legal principle referred above, there is dearly no dispute from the factual background to the case before us that the second, third and fourth pre-conditions in the list were established. For clarity on the second ingredient, however, it is undeniable fact, substantially, that the parties, both in Revision Application No. 88 of 2019 and in Labour Complaint No. 01 of 2023 remained the same. Notably, the coming of the Attorney General (the AG) in the proceedings at a later stage in Labour Complaint No. 01 of 2023 as the second respondent is immaterial. It does not, with all intents and purposes alter the identity of the parties to become substantially different. It is so, because it is common knowledge that the AG represents the government of Tanzania as the Chief Legal Advisor, whose interests, in the present case, are aligned with those of the first respondent. Put in other words, there were in both litigations no change in the capacity or legal titles of the parties involved. Equally important, in the earlier proceedings, Labour Revision 9

No. 88 of 2019 was heard and finally concluded by the High Court (Labour Division) having competent jurisdiction. Therefore, the fourth and fifth pre-conditions for the doctrine of resjudicata was satisfied too. The foregoing observations in mind, the bone of contention lies on the remaining the first pre-condition as previously highlighted. Predominantly, whether, the two litigations involved the same subject matter. Notably, as alluded to before, the proceedings in Labour Revision No. 88 of 2019 primarily concerned execution of the Settlement Deed emanating from the CBA, with respect to Labour Dispute No. CMA/ARS/MED/552/2016. Clearly, there, the question was whether the respondent had breached the agreed terms of the Settlement Deed by implementing the Scheme. It is recalled, in that regard, that the High Court found the intended execution literally premature, as the implementation of the Scheme was still far remote. In contrast, therefore, in Revision Application No. 88 of 2019 before Kamuzora, J., the concern was execution of the CBA. It is glaring to us however, that Labour Complaint No. 01 of 2023 raised broader and qualitatively different legal issues all together. For instance, in that complaint, there was alleged violation of statutory and organizational 10

rights under the Employment and Labour Relations Act. Therefore, the relief sought was two-fold: One, for the High Court to give an effective interpretation of, and to determine applicability of the Written Laws (Miscellaneous Amendments) Act No. 2 of 2020, with regard to the employees' right of association. Two, for the court's intervention on the legality or otherwise of the respondent's conduct, particularly on the restrictions imposed on the Trade Union workers' activities. That, there was interference with the contributions of the employees, contravening their statutory protections. In other words, the said two litigations involved substantively different subject matters, seeking different reliefs. We are mindful that categories of the requisite conditions for the application of the principle of res judicata to apply are never closed. Therefore, even variance of the reliefs fundamentally sought renders the doctrine of res judicata inapplicable. Literally, in our considered view, Labour Complaint No. 01 of 2023 was invariably distinct from the contractual enforcement issues previously raised by the appellant in the earlier litigation Labour Revision No. 8 of 2019. We want to stress that, the mere fact that two litigations arise from a common factual background count nothing. It does not automatically guarantee the respective proceedings being identical for invocation of the li

doctrine of res judicata. It is unfortunate, in the present case that the learned Judge respectfully did not observe all the circumstances properly. What counts most is the cumulative effect of a minimum of the five common identifying features, as alluded to before. In light of the foregoing consideration, we hold that the doctrine of resjudicata was respectfully misapplied in the circumstances of the case. In the result, the appeal is merited and thus, allowed. For the avoidance of doubt, we therefore order for the determination of Labour Complaint No. 01 of 2023 on merit as soon as practicable, before another Judge. DATED at ARUSHA this 7th May, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Judgment delivered this 7th day of May, 2026 via teleconferencing in the presence of Mr. Asubuhi Yoyo, learned counsel for the appellant and Mr. Masunga Kamihanda, learned Senior State Attorney for the respondent and Mr. Nelson Novati, Court Clerk in person is hereby cei ■ '*