Tahseen Salim Mawji vs Jeet Pharmacy (Civil Appeal No. 771 of 2023) [2026] TZCA 514 (7 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWANDAMBO, J.A.. KENTE. J.A. And MGONYA, J.A.: CIVIL APPEAL NO. 771 OF 2023 TAHSEEN SALIM M A W JI................................................................... APPELLANT VERSUS JEET PH ARM ACY.......................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza) (Morris, J.^ dated the 18th day of August, 2023 in Labour Revision No. 13 of 2023 JUDGMENT OF THE COURT 23rd April & 7th May, 2026 MGONYA, J.A,: The appellant, Tahseen Salim Mawji, is before this Court aggrieved by the decision of the High Court at Mwanza which upheld the award made by the Commission for Mediation and Arbitration (the CMA) in Labour Dispute No. CMA/MZA/NYAM/321/03/2022 concerning alleged breach of an employment contract by the respondent. By way of background, the appellant was employed by the respondent under a fixed-term contract of two years commencing on 1st October, 2020 ending on 30th October 2022, in the position of Supervisor. However, barely two months into the contract, the respondent terminated the appellant's employment by a letter dated 20th December 2020 (Exh. P5). The termination was grounded on alleged misconduct, namely: One, fighting at the workplace; and two, breach of office rules by bringing unknown persons into the office premises who purported to act as the appellant's advocates, and raising the issue of unlawful termination despite the appellant still being in the respondent's employment. Dissatisfied with the termination, the appellant challenged the same before the CMA. Through CMA Form No.l, he claimed a total of TZS. 30,250,000.00, comprising payment of salary for the unexpired term of the contract, leave pay, and severance pay. After hearing the parties, the CMA found no satisfactory evidence of breach of contract on the part of the respondent as claimed by the appellant. However, the CMA found the respondent guilty of flouting the procedure in terminating the appellant without affording him the right to be heard. Having sustained the claim, the CMA awarded the appellant an assortment of reliefs ranging from salaries for the unfinished term of the contract, one month's salary in lieu of notice, and one month's leave pay all amounting to a total of TZS. 13,153,845.00, and a certificate of service. Being aggrieved by the award of the CMA, the appellant sought to challenge the same by way of revision before the High Court. The High Court, upon due consideration, dismissed the application for want of merit. The learned High Court Judge found that the appellant's termination was fair and, accordingly, saw no legal basis to interfere with or overturn the CMA award. The award was thus upheld in its entirety. Dissatisfied with the decision of the High Court, the appellant has preferred the instant appeal to this Court, initially predicated on four grounds. However, at the hearing of the appeal, the learned counsel for the appellant abandoned three grounds and proceeded solely on the first ground. In that ground, the appellant contends that the High Court misapprehended the evidence on record relating to the salary scale that was applicable to the appellant. At the hearing of the appeal, the appellant was represented by Mr. Innocent John Kisigiro, learned advocate, assisted by Mr. Innocent Bernard, also learned advocate. The respondent was represented by Mr. Inhard Elizeus Mushongi, learned advocate. In arguing the sole ground of appeal, Mr. Kisigiro submitted that both the honorable arbitrator at the CMA and the learned High Court Judge erred in law by misapprehending and failing to properly evaluate the 3 evidence on record relating to the appellant's salary scale at the time of termination of his employment. The learned counsel contended that, having found that the appellant's employment contract had been breached, the arbitrator failed to adequately assess the evidence adduced and correctly apply the law in determining the appropriate salary scale to be used in computing the appellant's terminal benefits and compensation. He submitted that, the appellant's salary at the time of termination was TZS. 2,750,000.00 per month. This fact, he argued, was clearly established by the appellant's testimony at the CMA and reiterated in paragraph 4 of the appellant's affidavit filed in support of the revision application at the High Court. Mr. Kisigiro referred the Court to the appellant's testimony at page 163 of the record of appeal, wherein the appellant stated that upon expiry of the first employment contract, the respondent issued a new contract and increased his monthly salary from TZS. 2,500,000.00 to TZS. 2,750,000.00. The learned counsel emphasized that this evidence was neither challenged nor controverted by the respondent during the arbitral proceedings. It was further submitted that, the Arbitrator and the High Court Judge fell into an error by relying solely on the salary figure stated in the written employment contract (TZS. 1,000,000.00) while disregarding the unchallenged oral and documentary evidence demonstrating that the appellant was in fact receiving a monthly salary of TZS. 2,750,000.00 from the respondent through multiple channels including; bank transfers, cash payments, and M-Pesa transactions. In this regard, counsel highlighted that the mobile number used for M-Pesa payments was registered in the name of one Albert Kyaruzi; an employee of the respondent stationed at the Bukoba Branch. In support of this position, Mr. Kisigiro invited the Court to consider the testimony of DW1 at page 200 of the record of appeal who acknowledged that employees working in one branch could be paid through another branch. DW1 further confirmed that the appellant was paid, among other modes, through mobile money transactions using the said number consistently every month. Concluding his submissions on the ground, learned counsel for the appellant urged that, both the CMA Arbitrator and the High Court Judge grossly erred in law by failing to properly analyze and evaluate the material evidence on record concerning the appellant's actual salary. He submitted that the appellant's evidence on this issue was clear, consistent, and unshaken, yet, the two lower forums, for reasons best known to them, chose to ignore it and instead upheld an award based on an outdated and incorrect salary scale. The learned counsel contended that, such an omission amounted to a failure of justice. 5 In reply, the learned counsel for the respondent, Mr. Mushongi, contended that the Arbitrator properly evaluated the evidence adduced before the CMA and made an award that was fully supported by that evidence for reasons clearly articulated in the arbitral award. He emphasized that, the Arbitrator was perfectly entitled to find that the appellant's monthly salary was TZS. 1,000,000.00, a finding not based on the Arbitrator's own independent conclusions but squarely grounded on the employment contract (Exh. PE 2) and the Employer's NSSF Contribution Form (Exh. DE 1). The learned counsel stressed that, since parties are bound by the terms of their contract, the alleged subsequent increase of the appellant's salary to TZS. 2,500,000.00 and later to TZS. 2,750,000.00 was neither satisfactorily proved nor accepted by the respondent at the CMA. In this regard, counsel referred to the testimony of DW1, who confirmed under examination-in-chief that the appellant was paid only TZS. 1,000,000.00 per month as per the employment contract; a position consistently maintained by the respondent throughout the proceedings. Mr. Mushongi further submitted that the High Court Judge meticulously reappraised, re-evaluated and analyzed the evidence on record and reached a correct conclusion. Both the Arbitrator and the High Court, it was argued, acted judiciously upon the evidence properly 6 adduced concerning the appellant's salary scale. Learned counsel urged that, to grant the appellant's claim in the absence of credible supporting evidence would amount to a subversion of procedural requirements and the rule of law. He submitted that, both the CMA and the High Court followed the law, properly evaluated the evidence placed before them, and committed no misapprehension or error in determining the appellant's monthly salary. That, in his view, since there are concurrent findings of fact by the two lower forum s that no m isapprehension of evidence, miscarriage of justice, or violation of any principle of law or procedure occurred in relation to the determination of the salary scale, this Court ought not to disturb those findings. In this respect, Mr. Mushongi referred us to our earlier decision in Amratial Damodar and Another v. A.H. Jariwalla [1980] TLR 31, where it was held that where there are concurrent findings of facts by two courts, the Court of Appeal, as a wise rule of practice, should not disturb them unless it is clearly shown that there has been a misapprehension of evidence, a miscarriage of justice or a violation of some principle of law or procedure. He insisted that, the aforementioned principle is squarely applicable to the present appeal. In concluding his response to the said ground of appeal, the learned counsel maintained that the CMA and the High Court had duly complied with the applicable procedural laws and rules of evidence, and therefore he was firm ly of the view that the ground lacks merit and ought to be dismissed in its entirety. Having carefully summarized the facts of the case and the rival subm issions of the parties, we are now in a position to address the sole ground of appeal before us. The ground alleges that both the Arbitrator and the learned High Court Judge erred by misapprehending the evidence on record relating to the salary scale applicable to the Appellant. The High Court reached its finding on the strength of clause 4 of the employment contract (Exh. PE 2), which governed the period from 1st October 2020 to 30th October 2022 and remained in force until the termination of the appellant's employment. From the record, it is evident that the appellant served under two successive written contracts of employment (Exhibits PE 1 and PE 2) serving as Sales Officer and as a Supervisor, respectively. In both contracts, clause 4.0 expressly stipulated the appellant's monthly salary as TZS. 1,000,000.00. The clause is as follows: "4.0 MSHAHARA. Ndani ya kipindi cha ajira, Mwajiri atawajibika kumlipa Mwajiriwa kiasi cha Shilingi za Kitanzania TZS 1,000,000 ambacho kitalipwa kwa Mwajiriwa kiia mwisho wa wezi." At page 162 of the record of proceedings, before the CMA, the appellant testified that under the first contract of employment, he was entitled to a monthly salary of TZS 2,500,000.00, which was allegedly paid to him in three modes: TZS 900,000.00 through the bank, TZS 600,000.00 in cash, and TZS 1,000,000.00 via M-Pesa. Further, at page 163 of the record, the appellant testified that during the second tenure of his employment, his monthly salary was increased to TZS 2,750,000.00, payable as follows: TZS 900,000.00 through the bank, TZS 600,000.00 in cash, and TZS 1,250,000.00 via M-Pesa. He maintained that this was the last salary he received from the respondent and urged the CMA, and now this Court to consider the said sum as the basis for computation of his terminal benefits. When cross-examined as to why he was paid a sum higher than that stipulated in the written contract of employment, the appellant candidly stated that the enhanced payment was pursuant to an oral agreement reached between him and his employer. He conceded, however, that this arrangement was never reduced into writing or otherwise documented. The record of the CMA at page 163 speaks for itself on this point: V. Tshs. Laki 9 inaingia bank TPB, laki sita (600,000) napokea cash kutoka Jeet Pharmacy na m iHoni moja (1,000,000/=) napokea kwa Mpesa kutoka Bukoba Jeet Pharmacy. S. Kwa nini ulikuwa unalipwa hizo pesa? J. N i makuba/iano yangu na Mwajiri. 5. Makubafiano yenu mfiyaandika kimaandishi? J. Hapana." The testimony that the appellant was paid a salary in the sum of TZS. 1,000,000.00 per month was amply corroborated by the evidence of Nestory Joseph Mayenga (DW1), the respondent's accountant and human resource officer. In his testimony, DW1 stated clearly that, in terms of the employment contract between the parties, the appellant's monthly salary was TZS. 1,000,000.00, which was remitted directly into the appellant's bank account maintained with the Diamond Trust Bank (DTB). To buttress his evidence, DW1 produced the respondent's employees' NSSF remittance list which was admitted in evidence as Exhibit DEI. In that exhibit, the appellant's name appears at item 11 reflecting a gross monthly salary of TZS. 1,000,000.00. DW1 further clarified that the appellant's salary was subjected to the statutory deduction of 10% for NSSF contributions, as clearly shown in the said exhibit. Significantly, DW1 confirmed that the respondent had no record or acknowledgement whatsoever of having paid the appellant the sum of TZS. 2,750,000.00 as alleged by the appellant. 10 A crucial issue that falls for determination, therefore, is: What was the appellant's monthly salary at the time of his termination? It is common ground that the appellant and the respondent maintained an em ployer-em ployee relationship throughout the period of their relationship. This relationship is duly evidenced by Exhs. PEI and PE2. It is trite law that parties to an employment contract are bound by the express terms and conditions contained therein. This principle reflects the well-established doctrine of pacta sunt servanda - agreements must be kept, and underscores the sanctity of contracts. The said principle is, of course, subject to the mandatory statutory minimum standards prescribed under the Employment and Labour Relations Act and its amendments (the ELRA), the Labour Institutions Act, (the LIA) and the subsidiary legislation made thereunder, including, the Employment and Labour Relations (Code of Good Practice) Rules, 2007 (G.N. No. 42 of 2007) and the Employment and Labour Relations (General) Regulations, 2017 (G.N. No. 47 of 2017). In this regard, written contracts of employment or statements of particulars are strongly preferred and, in most cases, required by law. In support of the above position, we make reference to the cases of Miriam E. Maro v. Bank of Tanzania (Civil Appeal No. 22 of 2017) [2020] TZCA 1789 and Salhina Mfaume & l i Others v. Tanzania Breweries Co. Limited (Civil Appeal No. I l l of 2017) [2021] TZCA 209, among other authorities. It is trite and well-settled that courts and the CMA routinely uphold and enforce the express terms of employment contracts, including provisions relating to the duration of the contract, notice periods, renewal clauses, remuneration, benefits, termination procedures, and remedies for breach. Fixed-term contracts ordinarily come to an end by effluxion of time unless renewed by mutual agreement or by the conduct of the parties. A timely notice of non-renewal is usually sufficient to defeat any claim of legitimate expectation of renewal. However, where a claim of unfair termination is properly brought under the ELRA, the employee may be entitled to compensation, though such compensation is often limited or reduced having regard to the terms of the contract and the evidence on record. Turning to the instant appeal, the record shows that upon termination of the appellant's employment by the respondent, the appellant was paid his terminal benefits in accordance with the agreed modality stipulated in clause 4.0 of Exh. PE 2, subject to the 10% NSSF contribution as provided under clause 5.0 of the employment contract. 12 We have carefully examined the evidence and observed that nowhere in Exh. PE 2 (the last employment contract) is stated or implied that the parties had agreed that the appellant's salary would include any additional emoluments or sources of payment beyond what was expressly provided in the contract. In the absence of any credible evidence to the contrary, we are satisfied that the payment reflected in Exh. PE 2 represented a full and final settlement of the appellant's terminal benefits. The parties must therefore be taken to have amicably settled the matter, and they are accordingly estopped from asserting any further claims outside the four corners of the contract. Had there been any other mode of payment or additional benefits, the same ought to have been expressly incorporated into the employment contract so as to form a proper legal foundation. Such an arrangement would also have been reflected in the NSSF contributions thereby providing concrete evidence of the true salary basis for terminal benefits calculation, as demonstrated in Exh. DE 1. In the absence of any such variation in Exh. DE 2, we find no basis to fault either the Arbitrator or the learned High Court Judge in their concurrent finding that the appellant's salary at the time of termination and, consequently, the computation of his terminal benefits was TZS 1,000,000.00 as clearly stipulated in the parties' employment contract. 13 From the record, we have also noted that the said contract further conferred upon the parties the right to vary or amend its terms upon service of the requisite notice as provided under clause 10.0 (d) thereof. However, neither party ever invoked or utilized that option to effect any variation of the contractual terms despite any perceived need to do so. In view o f the foregoing, we are of the considered opinion that the respondent acted squarely within the terms and conditions of the Employment Contract freely entered into by the parties. It is a fundam ental principle of the law of contract that parties are bound by the terms of the agreement they voluntarily executed, and courts must give effect to such terms unless they are shown to be illegal, contrary to public policy, or vitiated by fraud or duress. This Court had occasion to affirm this position in Univeler Tanzania Ltd. v. Benedict Mkasa Trading as Bema Enterprises (Civil Appeal No. 41 of 2009) [2016] TZCA 24, where we drew persuasive support from the decision of the Supreme Court of Nigeria in Osun State Government v. Dalami Nigeria Limited (SC. 277/2002). In that case, we em phasized that: "Strictly speaking, under our laws, once parties have freely agreed on their contractual clauses, it would not be open for the courts to change those 14 clauses which parties have agreed on between themselves. It was up to the parties concerned to renegotiate and to freely rectify clauses which parties find to be onerous. It is not the role o f the courts to re-draft clauses in agreements but to enforce those clauses where parties are in dispute . " See also the cases of Simon Kichere Chacha v. Aveline M. Kilawe (Civil Appeal No. 160 of 2018) [2021] TZCA 43, Harold Sekiete Levira & Another v. African Banking Corporation Tanzania Limited (Bank Abe) (Civil Appeal 46 of 2022) [2022] TZCA 754 and Jimmy Lugendo v. CRDB Bank Ltd (Civil Appeal No.224 of 2020) [2023] TZCA 17372 to mention but a few. In Kichere's case (supra), the Court held inter-aiia thdt: "It is settled law that parties are bound by the agreements they freely entered into and this is the cardinal principle o f the law o f contract That is, there should be a sanctity o f the contract..." Taking a hint from the foregoing decisions, in the instant case, the parties herein are equally bound by the terms of clause 4.0 of the employment contract executed between them. Consequently, we hold that the sole ground of appeal is unmeritorious, and it is accordingly dismissed. 15 In light of what we have endeavored to discuss, we find and hold that the decision of the High Court was in all aspects sound in law, as such, we cannot fault it. Consequently, we dismiss this appeal in its entirety with no order as to costs. DATED at MWANZA this 06th day of May, 2026. Judgment delivered this 7th day of May, 2026 in the presence of Mr. Innocent J. Kisigiro, learned counsel for the appellant who also took brief for Ms. Suzan Nana Gisabu, learned counsel for the respondent and John Banene, Court Clerk; is hereby certified as a true copy of the original. L. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 16