D.Light (Tz) Ltd vs David Shukuru Charles (Civil Appeal No. 841 of 2024) [2026] TZCA 501 (7 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: FIKIRINI, J.A.. RUMANYIKA. J.A. And ISSA. J J U CIVIL APPEAL NO. 841 OF 2024 D.LIGHT (TZ) LTD ..................................................................APPELLANT VERSUS DAVID SHUKURU CHARLES................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (Labour Division) at Arusha) (B?de, j.) dated the 7th day of February, 2023 in Revision No. 52 of 2023^ JUDGMENT OF THE COURT 22n dApril & 7th May, 2026 RUMANYIKA, J.A.: The respondent, David Shukuru Charles, was employed by the appellant as the local General Manager, with effect from 10th September 2018. His initial salary was USD. 11,190.00, which was increased to USD 12,089.97 later in March 2021. However, on or by 25thJanuary 2021, it was no longer at ease with them. It began with the respondent being accused of sexual harassment by bullying and retaliation against the female employees thereof, as allegedly reported by some whistle blowers. On that account, the appellant required, in writing for the respondent to show cause why should disciplinary measures not be taken against him for the alleged unpleasant conduct. He disputed the allegations vide a letter dated 1s t February 2021. About three weeks later, the respondent was summoned through a letter dated 22n d February 2021 for a disciplinary hearing to be conducted on 25th February 2021 in Nairobi, Kenya. The respondent, however, expressly declined to attend, citing what he considered to be irregularities in the intended proceedings. Then, the disciplinary hearing was re-scheduled to take place in Arusha on 4th March 2021. Nevertheless, the respondent similarly declined to attend, by a letter dated 2n d March 2021. Notwithstanding the respondent's absence, the appellant proceeded with the disciplinary hearing and ruled against him. Aggrieved by that decision, the respondent appealed to the internal Board of Directors. He complained that, the disciplinary committee was improperly constituted and that the allegations were not proved against him as alleged. However, the decision of the disciplinary committee was upheld. Consequently, on 31s t March 2021, the respondent was issued with a letter terminating his employment (exhibit Dl). Dissatisfied with that termination, the respondent approached the Commission for Mediation and Arbitration of Arusha at Arusha (the CMA). It was Labour Dispute No. CMA/ARS/ARS130/21/73/21, for unfair termination. In the end, the CMA found the termination to be substantially fair, but the procedure was flawed, thus unfair and therefore awarded a six months' salary compensation. Not happy with the award of the CMA, the appellant filed Revision No. 52 of 2025 in the High Court of Tanzania at Arusha (Bade, J.). In consequence, the High Court in its decision handed down on 15thFebruary 2022 upheld the award. The award was enhanced from six to twelve months' salary compensation. The appellant has preferred the present appeal, fronting five (5) points of grievance still protesting the liability. Those points are paraphrased thus; One, the learned Judge erred in finding that, the CMA had jurisdiction, in total disregard of Clause 19(a) of the employment contract, two, the learned Judge failed to hold that the issue of procedure for the termination being flawed was improperly raised suo motu by the CMA; three, failure of the learned Judge to hold that the disciplinary committee was improperly constituted for being presided over by the unqualified DW4. Four, the learned Judge's finding that, the termination was procedurally fair, disregarding the respondent's act of refusing to attend the respective disciplinary proceedings and; five, the unsolicited hence, unjustified enhancement of the terminal benefits from six to twelve month's salary compensation. 3 At the scheduled hearing of the appeal, Messrs. Timon Vitalis and Asubuhi Yoyo, learned counsel teamed up representing the appellant. Mr. Sabato Ngogo, learned counsel represented the respondent. Upon taking the floor, the lead counsel, Mr. Vitalis began by adopting the appellant's written submission as part of his oral submission, together with the list of authorities filed on 04/07/2025 and 16/04/2026, respectively. On set, Mr. Vitalis cited to us a legal principle, that unless it is in contravention of the law or public policy, which is not the case, the parties to any contract are bound by their own chosen forum for processing the disputes, in line with the doctrine of sanctity of contract. It was contended that, the parties in this case having agreed to refer the dispute to an ad hoc Arbitrator at the first instance, as per Clause 19 of the contract (exhibit Dl), none of them had any other choice. That, doing otherwise they would violate the long well known legal principle that, parties do not confer jurisdiction on the courts of law, but only the statutes do. To reinforce his proposition, Mr. Vitalis cited the Court's decisions in Solohaga Company Ltd v. Attorney General, Civil Appeal No. 149 of 2022 [2025] TZCA 26 and Mashishanga Salum Mashishanga v. CRDB Bank PLC, Civil Appeal No. 535 of 2021 [2024] TZCA 203 and Simon Kichele Chacha v. Aveline M. Kilawe [2021] TZCA 43. Further, it was contended that, Clause 19 had the blessings of section 93 (1) and (2) of the Employment and Labour Relations Act (now section 94(1) and (2), and thus, not against the public policy. That, for any reason to hold otherwise, the High Court fell in error. Rounding up the point, Mr. Vitalis asserted that, the moment the respondent voluntarily entered into the said submission agreement, he was precluded from approaching any ordinary arbitral tribunal, in this case the CMA upright, instead of approaching an ad hoc arbitral tribunal, first. Very unfortunately, it was argued, no good reason was assigned for the respondent avoiding that agreed forum, which rendered the CMA proceedings vitiated. Cited was Construction Engineers and Builders Ltd v. Sugar Development Corporation [1983] T.L.R. 13 to bolster Mr. Vitalis's point. It was therefore argued that, the High Court interpreted Clause 19(a) of the contract improperly, as the Arbitrator intended therein is not the one who permanently presided in the CMA. That, nor was the word "may" used in the said Clause meant for the parties to choose not to approach an ad hoc Arbitrator, first. In addition, Mr. Vitalis faulted the learned Judge for having shifted the liability to the appellant. It was contended that the appellant had no option but to conduct the disciplinary proceedings first, as she did. Mr. Vitalis added that, it is the aggrieved respondent who should have initiated ad hoc arbitration proceedings 5 challenging the termination. On the part of the appellant, it was further asserted, sexual harassment as a ground for the termination of the respondent's employment was not one of the anticipated and agreed disputes to be referred to ad hoc Arbitrator, first. In fine, the learned counsel implored us to allow the appeal as the learned Judge unfortunately erred in her finding that the CMA had the jurisdiction to hear and determine the labour dispute at issue. In reply, Mr. Ngogo opposed the appeal with a moderate force. He contended that, in fact Clause 19(a) of the contract under consideration is only concerned with interpretation issues. That, it had nothing to do with the fairness or otherwise of termination of the contract of employment. Further, it was contended that, because the appellant did not challenge the CMA's decision on the ground that it had no jurisdiction, the complaint cannot be raised now. It was also contended that, in the respective CMA Form No. 1 only breach of employment contract was pleaded and not its termination, which was raised at a later stage. In rejoinder, Mr. Vitalis essentially reiterated his earlier submission. He insisted that Clause 19(a) of the employment contract was of such a general application, covering several disputes, interpretation issues inclusive. That termination of the respondent's contract was an act of 6 breaching the contract envisaged by the parties, also to be referred to an ad hoc Arbitrator first, without more. Upon hearing the learned counsel's rival submissions, and emphatically examined the record , the central point for our consideration and determination is whether the CMA had the jurisdiction to entertain the said labour dispute. This is with regard to the requirement of Clause 19 of the corresponding employment contract. Principally, the first ground of appeal raises a jurisdictional issue which, in our considered view would sufficiently dispose of the appeal. For that reason, therefore, we will only deliberate on it. For easy reference, the said Clause 19(a) reads: The parties shall use the best efforts to settle amicably all the disputes arising out of or in connection to this contract or its interpretation a) Any dispute between the parties on the matters arising pursuant to this contract which cannot be settled amicably within (30) days after the receipt o f the other party's request for such amicable settlement may be referred by either party to arbitration in accordance with the iaws of Tanzania" (Emphasis added) As is gleaned from the excerpt above, especially the bolded words, we are unable to agree with Mr. Ngogo's contention that Clause 19 concerned with issues of interpretation of the employment contract only. It is nakedly against the reality on the ground. With respect, the learned counsel may wish to see and understand that, that clause extends to such other kind of disputes that would arise out of the contract. For clarity, the non- microscopic key words of the contract are; "aii the disputes arising out of or in connection to this contract or its interpretation In other words, issues of interpretation of the contract is one of those intended by the parties in itself as an independent dispute. Other disputes could be any other acts or omissions by the parties having the effect of breaching the contract, including termination of the employment, as is in the present case. Had the contrary be the intention of the parties, it would have put it so expressly that Clause 19 of the contract of employment will serve the interpretation purposes only, as strangely alleged by Mr. Ngogo. Importantly, the parties, from its inception had in minds such a broad- spectrum mandatory Clause that, in the event of any dispute, they approach an ad hoc arbitrator, at the first instance. With respect, we find Mr. Ngogo's interpretation of the said Clause 19 relatively too narrow to meet the parties' intention. Moreover, our careful take of the use of the word "may", as used in said Clause 19 shows that, should a dispute arise, it was more permissive to the parties going for an ad hoc arbitration first than being optional, as correctly argued by Mr. Vitalis. Therefore, we are settled in our minds that Clause 19 of the parties' employment contract established such a mandatory amicable dispute processing arrangement. It was exercisable within the limit of the first thirty days of the need for such an intervention before recourse to arbitration by the CMA can be taken. In other words, parties had no any other preliminary lawful-amicable dispute settlement mechanisms than approaching an ad hoc Arbitrator, under the circumstances of the case. See- Dominion Oil and Gas Limited vs Logistics (T) Limited (Civil Appeal No. 132 of 2008) [2015] TZCA 811. Without being repetitive, it is undisputed in the present that the respondent did not invoke the agreed initial process. Instead, upon his employment being terminated, the respondent instituted a Labour Dispute at the CMA straight away. It is very unfortunate that the High Court fell into the same trap. It is stressed that, not only the dispute was instituted and entertained prematurely, but also the CMA had no jurisdiction, much as the High Court respectfully acted on a nullity, as correctly contended by Mr. Vitalis. 9 Increasingly, we will hold that, the requirement of the parties to a contract to adhere to its terms, in this case that they will at first go for an ad hoc arbitration should never be considered a cosmetic and luxury process. It intends to promote amicable solutions of the disputes, in line with Article 107A (2) (d) of the Constitution of the Republic of Tanzania, 1977. We cannot afford to ignore it. Therefore, the more the courts promote the agreed ad hoc arbitration at the expense of adversarial dispute processing, the better. The appellant may have not challenged or earlier on unsuccessfully objected the respondent not approaching ad hoc arbitrator and it did not appeal against the decision of the CMA. Still no single tribunal would assume the jurisdiction which is the creature of statutes only. It is more so, considering a long-settled legal principle that the doctrine of estoppel has never ever operated against jurisdiction of a court, which is fundamental. With respect, we are unable to accept Mr. Ngogo's urge that we hold to the contrary. Conversely, we agree with Mr. Vitalis on a proposition that, where parties to the contract have chosen a forum to amicably settle their disputes, no court of law can allow any deliberate defiance of it. Saying so, we are fortified by, among others, our twenty- years' old but still a valid proposition in Mvita Construction Company 10 v. Tanzania Harbours Authority (Civil Appeal No. 94 of 2001) [2005] TZCA 262. We want to stress that, whenever a tribunal jurisdiction is ousted in determining a matter, the resultant decision will always be good for nothing, as is here. Now that, the decision of the High Court was founded on a nullity, as the CMA was not clothed with jurisdiction, the appeal is hereby allowed. Should the need persistently arise, the parties are directed to re-litigate the matter all over again, in accordance with the law, at the earliest possible opportunity. 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. Sabato Ngogo, learned counsel for the respondent and Mr. Nelson Novati, Court Clerk in person is hereby certified as a true copy of the J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL