Nickson Alex vs Compassion International Tanzania (Civil Application No. 1994 of 2025) [2026] TZCA 504 (7 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CORAM: FIKIRINL J.A.; RUMANYIKA. 3.A. And ISSA. J.A. CIVIL APPLICATION NO. 1994 OF 2025 NICKSON ALEX..............................................................................APPLICANT VERSUS COMPASSION INTERNATIONAL TANZANIA............................RESPONDENT (Appeal from the decision of the High Court Tanzania at Arusha) (Mkuve. Mdemu And Issa, JJA.^ dated the 6th day of August, 2025 in Civil Appeal No. 101 of 2022 RULING OF THE COURT 27th April & 7th May, 2026 RUMANYIKA, J.A.: All began with an employment dispute between the appellant, Nickson Alex and his ex-employer, Compassion International Tanzania, the respondent. That employment was terminated on 2n dJuly 2018, giving rise to appellant's successful Labour Dispute No. CMA/ARS/ARB/176/18 in the Commission for Mediation and Arbitration for Arusha in Arusha (the CMA). In its award dated 6th August 2020, the CMA found the termination both substantively and procedurally unfair and ordered the respondent to i

reinstate the applicant and pay him salary arrears to the tune of TZS. 96,811,632.00. Aggrieved, the respondent filed Revision Application No. 66 of 2020 before the High Court. In its decision dated 30th August 2021, the High Court partially upheld the CMA award. While upholding the order for reinstatement, the court gave an option for the respondent not to, should she pay the appellant the pending salaries. In addition, the statutory twelve months' salary compensation. The said optional relief became a focal point of complaint later. Still dissatisfied, the respondent appealed to the Court. In its judgment delivered on 6th August 2025, a bench comprising Mkuye, Mdemu, and Issa, JJA. altered the High Court decision. It found the termination process to have been procedurally flawed, much as the termination was substantively fair. The Court in its decision noted that, the applicant's guilt was justified, as the respondent's appellate Committee had relied on the charged offence, as previously considered to be by the Disciplinary Committee. Dissatisfied, the applicant filed the present application for review under Rule 66(l)(a) of the Tanzania Court of Appeal Rules, 2009 (the Rules), assailing the judgment of the Court, on ground of manifest error on the face of record. 2

In this application, the applicant fronted four complaints essentially: First, that the Court overlooked contents of pages 553 to 556 of the record of appeal, as the applicant had never been charged with the offence of incompatibility which also formed the basis of his conviction and thus, the termination. Second, that had the Court also considered the uncharged offence of incompatibility, it would not have arrived at the decision made. Third, that the Court skipped the evidence of the Employee Handbook, prejudicing the applicant. Four, that the Court in its decision failed to consider and address some errors in the proceedings of the CMA. Messrs. Nickson Ludovick learned counsel on one side, and Boniface Joseph together with Matuba Nyerembe, on the other appeared for the applicant and the respondent, respectively at the scheduled hearing. Mr. Ludovick prefaced his submission by adopting the appellant's written submission filed. He pressed reliance on the Court's decision in Costantine Victor John v. Muhimbili National Hospital (Civil Application 188 of 2021) [2022] TZCA 646. Allegedly, that the case widened the scope of rule 66 of the Rules, on the grounds upon which the Court would review its own decision. It was contended that, there is discovery of a new issue in the present case, namely, in connection with 3

the letter of termination. That, it mentioned incompatibility, also as a ground of termination of the employment while it was not one of the formally charged offences. That, that fact unfortunately was not drawn to the Court's attention for its determination, hence the applicant not fairly heard. Further, Mr. Ludovick asserted that, had the issue also been considered, the Court would have arrived at a different conclusion. Mr. Ludovick added, the issue touches both on the substantive and procedural aspects of the termination. Based on the foregoing reasons, the learned counsel beseeched the Court to review the judgment. Replying, Mr. Joseph adopted the respondent's written submission filed online and the authorities cited. Opposing the application, the learned counsel contended that, the application offends the gist of rule 66(l)(a) of the Rules thus, misconceived. That, the grounds presented only address the applicant's grievances with the judgment, not demonstrating any alleged apparent error on the face of record, envisaged under rule 66(l)(a) of the Rules. As to what constitutes the alleged ground of review, Mr. Joseph cited the Court's decision in Symbion Power Tanzania Ltd v. CRDB Bank PLC (Civil Application No. 844/01 of 2023) [2024] TZCA 661, to reinforce his proposition. After all, it was argued, the Court, in its decision also took on board the said Employees Handbook, as is self- 4

evident on page 21 of the judgment. Briefly, Mr. Joseph considered the applicant's complaints to be an invitation for the Court to re-assess its own findings of facts and the judgment, which is quite untenable. He also argued that, the rule in Costantine Victor John (supra) is not applicable under the circumstances. Much as the disguised issue of denial of the right to be heard is neither here nor there, but simply an appeal through back door, which again cannot be accepted. In rejoinder, Mr. Ludovick reiterated his earlier submission. He wound up contending that, the Costantine Victor John (supra) invented the new discovery principle, as another identical issue which now may be allowable as a ground of review. That, the cases cited by Mr. Joseph are distinguishable from the facts of the instant application. He once again prayed for an order reviewing the Court's judgment. Upon hearing the rival submissions by the learned counsel for the parties, and examining the record, we are asked to determine whether the grounds presented by the applicant are allowable for review of the judgment of the Court. Notably, on set, while sitting as a review bench, as is here, the Court powers are of such a limited scope. It only determines whether the complaints presented establish any manifest error on the face of the 5

record, as the bottom-line, for the purpose of rule 66(l)(a) of the Rules. It is settled law that, review is an exceptional Court remedy and not a disguised appeal. Taken from its natural meaning, the four points raised seemingly fall short of the threshold. We shall explain. Upon careful examination of the record, along with the impugned judgment, we have the following observations: On the first ground, while we are cautioned not to re-asses our own previous judgment, which is not the purpose of review, it is clear to us that the complaint about the contents of the pages allegedly being "skipped" is inconsistent with the record. In fact, in arriving at its decision, the Court considered it all, having also cited the corresponding pages. In doing so, also, the Court reproduced the charges laid on the respondent's door. They included allegations of amending the said funded proposal without approval, cloning an expired proposal and adding beneficiaries without consultation, breaching the employee manual. The Court also made a clear finding that the Appellate Committee relied on the same charges as the Disciplinary Committee did. Moreover, in arriving at its decision, the Court clearly examined the contents of respective letter of termination to satisfy itself with among others, the grounds of termination. It made a definitive finding of fact out of it. Equally 6

unfounded therefore, is the assertion that the Court confused the CMA proceedings with those of the respondents internal appellate body. Therefore, the first ground is misconceived and dismissed. The above observations apart, with respect to the second ground, the Court also referred to admission made by the applicant's respondent's counsel, Mr. Raulencio, then, that the termination of the employment in question also took on board the alleged new charges, though were not adjudicated upon by the tribunals below. Therefore, it cannot be said, as alleged, that the issue of the new charges is a new phenomenon before this Court, in the light of the rule in Costantine Victor John (supra). Put in other words, it is incorrect to say that, that finding was made in ignorance of what is gleaned from pages 553 to 556 of the said record of appeal. Therefore, the issue now raised was conclusively decided by the Court, as is exhibited in the assailed judgment. In all fairness, therefore, what the applicant is asking the Court to do is far beyond the scope of rule 66(l)(a) of the Rules. We want to stress that, save for some deserving circumstances, which is not forthcoming here, the Court is precluded from re-considering its own judgment or rather, re-evaluating the evidence, among others, the respective charges appearing on page 553 of the record of appeal and

arrive at a different conclusion from the one made by the original panel. We decline to do so, because, should we allow that to happen, the matter would cease to be a review application but the same appeal through the rear door. We agree with Mr. Joseph's contention that, the applicant's complaints simply demonstrate a mere dissatisfaction with the Court's decision, constituting no ground of review. Put in other words, it cannot be said that the Court found the termination to be substantively justified, in exclusion of the uncharged offence of incompatibility. Therefore, the alleged denial of the right to be heard is neither here nor there. It is equally untenable. The mere fact that the applicant, in the end did not get the expected verdict and relief never constitutes a ground of review. With respect, Mr. Ludovick may wish to know that, the rule in Costantine Victor John (supra) was not such uncontrolled broad- spectrum invention. It does not embrace the new-discoveries principle envisaged under Order XLII rule 1(1) (b) of the Civil Procedure Code Cap 33, for the Court to invoke its powers of review. To state the obvious, the said provisions of the CPC cannot save as fallback position for rule 66 of the Court Rules. The second complaint is unmerited and misplaced.

As for the third complaint that, in its judgment, the Court skipped the handbook occasioning injustice on the part of the applicant. We note, for instance, that one of the charges against the applicant also discussed at length was violation of the Employee Handbook. However, this was not one of the applicant's appeal grievances before the Court, as appearing on pages 11 to 12 of the judgment. Therefore, to fault the Court on the matter which was not even brought to its attention and determination is tantamount to overstretching it's expected power and ability. That one is not allowable too. We have also given due consideration of the assertions on the uncharged offence of incompatibility also founding the applicant's conviction and termination of the employment. The issue is whether the applicant was condemned unheard, vitiating the resultant decision and thus, a manifest error on the face of record under rule 66(l)(a) of the Rules, as alleged. Looking at the record once again, especially the letter dated 2n d July 2018, we are indeed satisfied that, the offence of incompatibility also formed basis of the termination of the applicant's employment, though the applicant was not so formally charged. Similarly, the alleged incompatibility was not canvassed and decided upon by the CMA and later by the High Court. The applicant's learned counsel upon

being prompted by the Court, he also candidly admitted that such charges did not reflect in the record. The issue surfaced before the Court, as appearing on page 8 of the Judgment. Importantly, the resultant decision was that the applicant was unfairly terminated for gross misconducts as per the respective disciplinary proceedings. Under the circumstances, it cannot be maintained that the issue of incompatibility was, however remotely, not canvassed before the Court for it to warrant review, as envisaged by the Court in Costantine Victor John (supra). For our finding that the issue of denial of the right to be heard should have not been raised in the first place. Therefore, we are unable to accept it as an overlooked matter. Instead, we hold that this application is but a re litigation of the otherwise conclusively determined matter. In other words, Mr. Ludovick's reliance on the case law cited above is with respect, out of place, for being distinguishable from the facts of the present case. As regards when is the issue raised new or not, reference is made to the Court decision in Costantine Victor John (supra). In that case, it transpired that we had miscalculated the number of days the employee was absent from the work place by including weekends and public holidays, which we took on board also as ground for review. We did so, taking judicial notice because that fact is capable of being ascertained by 10

referring to the respective calendar. By all dimensions it is quite different from this case, where the applicant asks the Court to determine whether, in its judgment the Court skipped incompatibility of the applicant only raised in the letter as the basis of the termination, but not formally charged. Here, the alleged error is not newly introduced, as noted above, much as it is manifest and obvious on record. It does not require some new evidence and elaborate reasoning to detect or correct it. Therefore, the issue now raised for determination, no doubt it calls us to re- assess our own judgment, by necessary implication, which we cannot embark on. Therefore, we agree with Mr. Joseph that the complaint before us constitutes no error apparent on the face of the record, within the context of rule 66(l)(a) of the Rules, however strongly aggrieved the applicant may be. With respect, Mr. Ludovick may wish to know that, a mere dissatisfaction with the Courts' decision, or rather, a decisional error, as is alleged in the present case, is noteworthy not a ground of review. See- our decision in Halmashauri Kijiji Cha Vilima Vitatu & Another v. Udaghwenga Bayay & Others (Civil Application No. 16 of 2013) [2016] TZCA 573, from a plethora of authorities. ii

The fourth ground that the issues raised before the CMA not all being considered will not take our precious time. It is not real, considering the totality of our discussion above. The complaint also crumbles. In the upshot of it all, the complaints presented before us do not establish any manifest error on the face of record. They fall far short of the strict threshold required under Rule 66(l)(a) of the Rules. Therefore, the application is unmerited and it is hereby dismissed. 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 Ruling delivered this 7th day of May, 2026 via teleconferencing in the presence of Mr. Nickson Ludovick, learned counsel for the applicant and Mr. Boniface Joseph, learned counsel for the respondent and Mr. Nelson Novati, Court Clerk in person is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL