Intertek Testing Services (East Africa) (Pty) Ltd vs Seth Mbena (Civil Appeal No. 315 of 2023) [2026] TZCA 507 (7 May 2026)

IN TH E COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CO R A M : LEVIRA, 3.A.. MA5HAKA. J.A. And NGW EMBE, J.A .) CIVIL APPEAL NO. 315 OF 2023 IN TER TEK TESTIN G SERVICES (EAST AFRICA) (PTY) L T D .......... APPELLANT VERSUS SETH M B E N A ................................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mteule, J .1 dated 16th day o f December, 2022 in Application for Labour Revision No. 183 of 2022 RULING OF THE COURT 22n d April & 07th May, 2026 NGWEMBE, JA.: This ruling emanates from the judgment and decree of the High Court of Tanzania Labour Division, in Labour Revision No 183 of 2022 whereas the High Court Judge quashed and set aside the decision and award of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/TEM/218/19/104/19 between the parties herein. The CMA found the termination of the respondent to be fair substantively and procedurally. However, the High Court Judge overturned that decision and proceeded to award the respondent a compensation of 12 months i

salaries for unfair termination. The appellant was dissatisfied, hence the instant appeal grounded with seven (7) grievances. For the reasons to be disclosed soon, we do not intend to reproduce them hereunder. When the appeal was called on for hearing before us, the appellant was represented by Mr. Lwijiso Ndelwa, learned advocate. At the earnest and after a brief dialogue with the Court, Mr. Ndelwa intimated to us that, at trial before the CMA, each party had one witness, but both witnesses recorded their evidence unprocedurally. He pointed out that, while Seth Rweikaza Mbena (PW1) whose testimony appears at pages 141 to 170 of the record of appeal did not swear before adducing his evidence, the defence witness one Amina Said Makunganya (DW1) whose testimony is at pages 118 to 140 of the record of appeal, did not affirm. Instead, she took oath as if she was a Christian. Thus, making the whole trial before the CMA unmaintainable in law. He thus implored the Court to strike out the whole proceedings and decisions of both the High Court and the CMA, and order retrial beginning from the testimony of witnesses at the CMA. Mr. Adam Mwambene, learned counsel for the respondent noted those irregularities in the proceedings of the CMA and added that, it is a position of the law that the evidence adduced without taking oath or affirmation is invalid in law. Since both witnesses of the parties did not swear or affirm as required by the law their testimonies were invalid, thus 2

he joined hands with M r. Ndelwa to pray that the proceedings and decisions of the High Court and the CMA be struck out and order retrial. We have paid the deserving consideration of the arguments advanced by the learned counsel and inquisitively perused the record of appeal, we find unequivocally, there were serious procedural irregularities committed by the trial arbitrator in receiving evidence from the witnesses. It is evident at page 141 of the record of appeal that, PW1 being a Christian did not swear before he could proceed with his evidence. Likewise, DW1 being a Muslim did swear (Kuapa) instead of affirming (Kuthibitisha). We find no difficult on this issue because testifying before the court of law or tribunal is governed by law. The general law which governs civil proceedings, that is the Civil Procedure Code Cap 33 R.E. 2023 (the CPC) provides general guidance in Order XVIII Rule 2 (1) that, it is a mandatory requirement for any competent witness to testify orally after swearing or affirmation. For clarity the rule is reproduced hereunder: 2.-(l) '7/7 any suit, evidence in chief shall be given orally or by a witness statement; (2) For the purpose o f this Order, oral evidence has the meaning ascribed to it by section 3 o f the Evidence A ct (3) A witness statement shall (a) be made on oath or affirmation." (Emphasis provided). 3

Emphasis of taking oath or affirmation before testifying in a competent court of law or tribunal Is also provided for in a proviso to section 4 of the Oaths and Statutory Declaration Act, Cap 34 R.E. 2023, which provides: '! Subject to any provision to the contrary contained in any written law, an oath shall be made by- fa) any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court; or (b) any person acting as interpreter o f questions put to and evidence given by a person being examined by or giving evidence before a court: Provided that ; where any person who is required to make an oath professes any faith other than the Christian faith or objects to being sworn, statingas the ground o f such objection , either that he has no religious belief or that the making o f an oath is contrary to his religious belief, such person shall be permitted to make his solemn affirmation instead of making an oath and such affirmation shall be o f the same effect as if he had made an oath." (Emphasis added). The above provision goes hand in hand with rule 2 of the Oaths and Affirmation Rules, Government Notice 125 of 1967 which prescribes 4

mandatory taking oath or affirmation for all religious believers and non believers before adducing evidence in any court of law or tribunal. Given the above provisions of law, it is a statutory requirement that every witness before testifying in any court of law or tribunal must swear or affirm, failure of which renders the whole evidence invalid. This Court has stressed in a plethora of decisions on the relevance of making oath or affirmation including the cases of Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase (Civil Appeal No. 257 of 2020) [2020] TZCA 1890 (11 December 2020) and Iringa International School v. Elizabeth Post, (Civil Appeal No. 155 of 2019) [2021] TZCA 496 (20 September 2021). Back to the labour laws, rule 25 (1) of the Labour Institutions (Mediation and Arbitration Guidelines), Government Notice No. 67 of 2007 (GN. No. 67 of 2007) compels the Arbitrator to receive evidence of witnesses under oath or affirmation. The rule is reproduced hereunder: 25 (1) "The parties shall attempt to prove their respective cases through evidence and witnesses shall testify under oath ..." From the excerpt above, it is mandatory for a witness to take oath or affirmation before he or she gives evidence before the CMA. This is also in conformity with section 4 (a) of the Oaths and Statutory Declarations Act

referred above. In this point we pay homage to our decision in the case of Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase (supra), the Court was faced with akin situation and held as follows: "Where the (aw makes it mandatory for a person who is a competent witness to testify on oath , the omission to do so vitiates the proceedings because it prejudices the parties'case." The same holding was repeated in the case of Iringa International School v. Elizabeth Post (supra) and Nestory Simchimba v. Republic (Criminal Appeal No. 454 of 2017) [2020] TZCA 155 (1s t April 2020), where in both cases, we emphasized that failure to subject the witnesses to either oath or affirmation depending on one's faith, is fatal and renders the recorded evidence a nullity and for that reason, such evidence cannot be acted upon by the court to determine the rights of the parties. In the instant appeal, we agree with both learned counsel that the evidence of PW1 is invalid. Consequently, we find both the trial tribunal and the learned Judge of the High Court strayed into error to rely on that invalid evidence. We would end up on this point alone, but the learned counsel argued on invalidity of the evidence of DW1 who was a Muslim believer, instead of

affirmation she took oath as if she was a Christian believer. However, me Court has already pronounced its stance on this issue that whether swearingor affirmation in essence, a person who swears and one who affirms are in effect making promises to speak the truth, thus not a fatal defect. In section 9 of the Oaths and Statutory Declarations Act, Cap 34 R.E. 2023, provides for interchangeable use of oath and affirmation as follows: "Where in any judicial proceedings an oath or affirmation has been administered and taken, such oath or affirmation shall be deemed to have been properly administered or the taking thereof, or any substitution o f an oath for an affirmation, or o f an affirmation for an oath, or o f one form o f affirmation for another." See also, Asha Haruna v. Republic (Criminal Appeal No. 74 of 2005) [2006] TZCA 248 (6 July 2006) and Mekefason Mandal & Others v. Registered Trustees of The Archidiocese of Dar es Salaam (Civil Application No. 397/17 of 2019) [2019] TZCA 450 (30 October 2019). Given the above legal position, the swearing (kuapa) instead of affirmation (kuthibitishwa) is not a fatal irregularity. However, in the circumstances of this case, the evidence of DW1 cannot stand against the non existence of the employer's evidence which we have declared invalid. 7

Consequently, we agree with both learned counsel that the procedural irregularity of the CMA proceedings vitiates the whole trial. In the event, we hereby quash the same and those of the High Court. As a result, we set aside the award of the CMA and the judgment of the High Court which stemmed from invalid proceedings of the CMA. On the way forward, we order that the matter be remitted to the CMA for the Labour Dispute to be heard before another Arbitrator from when the witnesses started to testify, that is from 28th day of April, 2021 onwards. Since this is a labour matter, we make no order as to costs. DATED at DAR ES SALAAM this 06th day of May, 2026. M. C. LEVIRA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 07th day of May, 2026 in the presence of M r. Francisco Kaijage Bantu, learned counsel for the Appellant, Mr. Adam Anosisye Elly Mwambene, learned counsel for the Respondent and Ms. Stela Mlaponi, Court clerk, is hereby certified as a true copy of the original.