SBC Tanzania Limited vs Abbas Mbega Mwankenja (Civil Appeal No. 1802 &1934 of 2025) [2026] TZCA 492 (6 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A.. MASOUD. 3.A. And MLACHA. J.A.^ CONSOLIDATED CIVIL APPEALS NOs. 1802 & 1934 OF 2025 SBC TANZANIA LIMITED ................................................................ APPELLANT VERSUS ABBAS MBEGA MWANKENJA....................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza) (Chuma. J.1 dated the 04th day of March, 2025 in Labour Revision No. 26693 of 2023 JUDGMENT OF THE COURT 21s t April & 6thMay, 2026 MASOUD. J.A.: The respondent, Abbas Mbega Mwankenja is a former employee of the appellant, SBC Tanzania Ltd who was terminated from the employment on 06th January, 2023 having worked with the respondent from 1s t September, 2014. Upon termination of his employment, the respondent unsuccessfully lodged a complaint to the CMA alleging unfair termination. Aggrieved by the CMA's award, he successfully applied for revision to the High Court which resolved it on 4th March, 2025 in his favour granting him i 20 months' salary remuneration as compensation for the unfair termination. Both the appellant and respondent lodged in this Court separate appeals, namely, Civil Appeal No. 1802 of 2025 and Civil Appeal No. 1934 of 2025 respectively. They were both against the decision of the High Court which reversed the CMA's award. In terms of rule 110 of the Tanzania Court of Appeal Rules, 2009 (the Rules), the two appeals were, with our leave, consolidated in such a manner that they were both to be attended together as consolidated Civil Appeals Nos. 1802 and 1934 of 2025 in the case file for Civil Appeal No. 1802 of 2025 and the parties were to appear in the order of that appeal case file. In the impugned decision, the respondent was granted a number of reliefs, namely, payment of TZS 1,936/- as excess money paid to the appellant's cashier on 29th December, 2022; payment of TZS 1,107,412 as a deficit in payment made to the respondent as a terminal benefit; payment of four days salary from 7th January, 2023 to 10th January, 2023; payment of 20 months remuneration as compensation for unfair termination and; payment of repatriation costs from Mwanza to Matema village, Kyela District, Mbeya Region. In effect, the decision quashed the CMA's award which had it that the respondent was fairly terminated by the appellant. 2 Both parties raised separate grounds of appeal seeking to fault the decision of the High Court. While the appellant raised three grounds, the respondent raised six grounds along with two points of preliminary objection against the appellant's appeal. In so far as the appellant is concerned, her grounds were; one, that, there was a failure by the High Court to properly evaluate the evidence; two, that, there was a failure by the High Court to find that the dispute was prematurely filed at the CMA as the respondent did not exhaust the internal management dispute resolution mechanism; and three that, the High Court erred in granting 20 month's salary remuneration as compensation to the respondent without assigning reasons for exercising its discretion beyond 12 months provided by the law. On the part of the respondent, his grounds were, one, failure to determine irregularities and errors raised by the respondent in paragraph 15 (a) of his affidavit pursuant to rule 28 (1) (d) of the Labour Court Rules, GN No. 106 of 2007 (the LCR) ; two, failure to deal with grounds of revision raised under section 91 (2) (a), (b), & (c) of the Employment and Labour Relations Act, Cap. 366 (the ELRA) and rule 2 (1) (b), (c), (d), & (e) of the LCR; three, exhibit SU9 was prepared by DW1 irregularly and falsely; four, awarding 20 months' salary remuneration without taking into 3 account all factors and circumstances surrounding the case in terms of rule 32 (5) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007(the LIR); five, failure to award subsistence expenses to the respondent from the date of termination to the date of repatriation as per section 43 (1) (c) of the ELRA; and six, failure to consider and grant general damages after equating it with statutory compensation. At the hearing of the consolidated appeals, where the appellant was represented by Ms. Hidaya Haruna, learned advocate and the respondent appeared in person unrepresented, the two points of preliminary objection were abandoned by the respondent. Consequently, the counsel for the appellant and the respondent adopted their rival submissions relating to the consolidated appeals. The only exception was the appellant who did not lodge written submissions in reply in relation to the respondent's appeal. As the appellant's counsel and the respondent were addressing us on the appeals before us, we engaged them on the issue whether the grounds of appeals are consistent with the provision of section 58 of the Labour Institutions Act, Cap. 300 (the LIA). That provision requires this Court to entertain grounds raising points of law only and not otherwise. It reads: 4 Any party to the proceedings in the Labour Court may appeal against the decision o f that Court to the Court o f Appeal o f Tanzania on a point o f law only." There was nothing useful from the respondent on the issue. On the contrary, the appellant's counsel's argument was that all grounds raised by the appellant are on points of law within the purview of section 58 of the LIA. She drew our attention to each and very grounds, as we further probed her on whether those grounds do not in effect invite us to re-open factual issues and whether determination by this Court of the consolidated appeals based on those grounds would be upon consideration of law only and nothing else. Despite her submissions that the appellant's grounds are on points of law, we did not hear her saying that the respondent's grounds were not on points of law. We have closely considered the grounds, the import of section 58 of the LIA and the submissions in respect of the issue at stake. We think that the issue needs not detain us much. It is settled that the Court will not in terms of section 58 of the LIA deal with and determine any ground which does not specify a point of law upon which the decision appealed against is objected. 5 It therefore follows that, an intending appellant must, in terms of that provision, specify the points of law which are alleged to have been wrongly decided and which must be evident on the face of the memorandum of appeal pursuant to rule 93 (1) of the Rules. We are in this position guided by our decision in CMA-CGM Tanzania Ltd v. Justine Baruti [2021] TZCA 256 in which we adopted in a labour dispute the definition of a point of law in tax matters stated in the case of Atlas Copco Tanzania Limited v. Commissioner General, Tanzania Revenue Authority [2020] TZCA 317, among others. Having applied the above principle to the grounds at issue, we found ourselves not persuaded that the first and second grounds raised by the appellant as is the third ground raised by the respondent concern points of law but plain questions of fact. Whilst those grounds on their very face do not relate to interpretation of the Constitution, construction or application of a statutory provision of law, they clearly relate to factual issues involving allegations of, firstly, improper evaluation of the whole evidence on record; secondly, allegations on whether the appellant has internal management dispute resolution mechanism, and if so, whether it was pleaded and tendered as an exhibit, and whether it provides for an adequate remedy of appeal to be exhausted before preferring a complaint to the CMA; and 6 thirdly, allegations that exhibit SU9 admitted before the CMA was prepared by DW1 irregularly and falsely. We are settled that if the Court were to allow itself to determine those grounds, it would amount to re-opening factual issues already determined by the lower courts and in respect of which there is on record factual findings binding upon us. Thus, entertaining those grounds is tantamount to acting contrary to the requirement of section 58 of the LIA which course we are not prepared to take. Consequently, the appellant's first and second grounds as well as the respondent's third ground are herein dismissed. Insofar as the appellant is concerned, we are left with the third ground only which relates to the respondent's fourth ground concerning the exercise of discretion in awarding 20 months' salary remuneration as compensation to the respondent. In so far as the respondent is concerned, the other grounds left for our determination are the first, second, fifth and sixth. We propose to start with the latter grounds which boil down to whether the High Court omitted to consider and determine matters which were brought to its attention by the respondent, before we deal with the former ground concerning the award of 20 months' salary remuneration as 7 compensation to the respondent, and the other ground on general damages. On the first issue above, we gather from the record that the complaints by the respondent were on: One, failure to consider and determine irregularities and grounds raised in the respondent's chamber summons supported by his affidavit which relate to section 91 (2) (a), (b) & (c) of the ELRA read with rule 28 (1) (b), (c), (d), & (e) of the LCR; and two, failure to consider and award the respondent subsistence expenses from the date of termination to the date of repatriation as per section 43 (1) (c) of the ELRA, having held that, the respondent was entitled to repatriation costs. The above complaints were covered in the respondent's written submissions that he adopted in support of his appeal. The substance of his entire submissions is that the High Court did not determine matters which he raised in his affidavit supporting his application for revision, notwithstanding that, both parties canvassed on them. The failure, he argued, amounted to denial of his right to be' heard which is an incurably fatal irregularity. He relied on a plethora of authorities on violation of right to be heard and consequences thereof which we need not mention them here. 8 With particular reference to subsistence expenses, the argument by the respondent that the learned Judge slipped into an error of omitting to say anything regarding his claim for subsistence expenses after deciding that he was entitled to repatriation costs from Mwanza to Matema village, Kyela District, Mbeya Region. As to failure to consider and grant general damages which is his complaint in his 6th ground, it was argued that, the issue was not determined although he raisedit in his application for revision before the Court. It was wrong, he argued, to equate general damages with statutory compensation as the former unlike the latter are monetary compensation awarded in civil suits for non-pecuniary or non economic losses which are inter alia not easily quantified. With the above submissions, he invited us to resolve the appeal in his favour. As to the payment of 20 months' salary remuneration, the respondent argued that the High Court did not consider all factors and circumstances surrounding the case before awarding him that compensation as is evident at pages 648, 649 and 650 of the record of appeal. As a result, the court awarded him inadequate compensation which is, he argued, far below his prayer for 96 months' salary remuneration. In his submission, the awardof 20 months' salary remuneration was granted arbitrarily and contrary to rule 32 (5) of the LIR. He urged the Court to be mindful that the dispute at hand accrued before 9 14th March, 2025 which, according to him, means that the old position of the law is the one that is applicable and not the amendment that became operational on 14th March, 2025. On the part of the appellant's counsel, her arguments were twofold. On one hand, she was in agreement with the respondent that most of the matters that he had raised and argued were not specifically addressed and resolved by the High Court. She argued that, if the Court finds merit on this argument, the only remedy available is to invoke the Court's revisional powers, nullify the decision of the High Court and set aside any order or decree thereof, and remit the case file to the High Court for it to compose afresh decision in accordance with law. However, as to the claims relating to subsistence expenses and general damages, the appellant's counsel argued against them, in the alternative to her earlier submissions. She contended, in a nutshell, that since the respondent was not recruited from Mbeya as the appellant's evidence on the record shows, and as there was no evidence to the contrary from the respondent, it was clear in her view that the respondent was not entitled to subsistence expenses. On the statutory compensation, the appellant's counsel was at one with the respondent that, the learned Judge did not exercise his discretion 10 properly. She charged that, he did not assign reasons for exercising his discretion beyond 12 months remuneration as provided by the law. She argued further that, with the recent amendment of section 41 (1) (c) (iii) of the ELRA, where the Labour Court finds that termination is based on both unfair procedure and unfair reasons, the employer may be ordered to pay compensation to the employee of not less than twelve months' remuneration, but not exceeding twenty months' remuneration. As to failure to grant general damages, Ms. Haruna was equally very brief as she submitted that the respondent was not entitled to the same as the same is discretionary which was properly exercised by the High Court. We have considered the impugned decision at pages 630 to 651 of the record of appeal, as we reflected on whether any of the raised complaints which survived the test under section 58 of the UA has any merit. In doing so, we were mindful that the High Court's finding that the respondent was unfairly terminated based on reasons and procedure was not disputed if we go by the remaining grounds which were mentioned above. We thus take it that the respondent's complaints are essentially not meant to question the finding on the unfairness of the termination but the statutory compensation awarded to him. l i Starting with the complaint that there were irregularities and grounds found at pages 269 to 275 of the record of appeal which were neither considered nor determined by the learned Judge, our eyes landed on page 631 of the same record where the learned Judge noted that, the respondent's application for revision before him was challenging the CMA's award which had it that, he was not unfairly terminated for he was terminated on valid reasons and on fair procedure. It is therein clear to us that, the learned Judge considered the issue which was raised by the respondent at paragraph 16 of his affidavit regarding irregularities he complained of in paragraph 15 (a) to (m) of the same affidavit found at pages 273 to 275 of the same record. It is noteworthy that the considerations made supported in the end his finding on the unfairness of the termination. It is clear that the considerations revolved on the issue whether the CMA's award which found that the termination was substantively and procedurally fair could be legally sustained. In so far as the issue boils down to what was complained about by the respondent, it was fully considered and determined in favour of the respondent. In so doing, the High Court considered the complaints and submissions by the parties that were relevant to determination of the fairness of the termination as is evident at pages 633 to 637 of the record of appeal. Such endeavour was notwithstanding the learned Judge's 12 finding that, the submissions were by and large misplaced. Certainly, what the learned Judge did and observed is apparent at pages 631 to 632 of the record of appeal where he stated that: Before starting to determine the raised legal issue in line with the submissions for the parties I must say that the submissions o f parties were mostly misplaced as parties failed to confine themselves to the raised legal issue in line with salutary issues for determination in disputes for unfair termination which are substantive and procedural fairness. More so in his submission Mr. Makenya took much time and pages repeating on non-consideration of his final or dosing argument there at however, I would wish to remind him that, dosing or final arguments are not evidence. They are just supplement or clarifications o f their submissions made while presenting their case. Final determination o f case is based on the evidence adduced by the parties on record and not on strength of submissions. See the case o f Peter Mathias Semagongo vs. Rightway Nursery & Primary School, Revision Application No. 150 o f 2022 (unreported). The issues as to the shortage of 2,081,864/-, reporting of the same, unilateral deduction of Tshs 613,000/- from the respondent's salary and the holding by the CMA that the respondent confessed to the charge laid 13 against him at the disciplinary hearing were looked at as matters which were complained of in paragraph 15 (f), (g), and (h) of the respondent's affidavit. Others included matters as to whether the appellant had valid and fair reason for termination raised in paragraph 15 (i) of the affidavit, and matters of evidence and closing submissions in paragraph 15 (b), (c), (d), and (e) of the affidavit which to us were within the purview of the position taken by the court at page 635 of the record that, it is, as a matter of law, entitled to re-evaluate the evidence as what was before it ordinarily takes the form of rehearing. Likewise, it is from pages 636 to 648 of the record of appeal, where there is an in-depth analysis by the learned Judge of the evidence on record which related to matters raised by the respondent and the appellant. They included matters relating to the fairness of the procedure used by the appellant to terminate the respondent and the evidence relating to repatriation which were all raised by the respondent in paragraph 15 (j) and (k) of the affidavit found at pages 642, 643, 648 and 649 of the same record. Thus, in view of what we found herein above, we are settled that the respondent's first and second grounds of appeal are devoid of merit. We dismiss them. 14 As to the issue on subsistence expenses, we think this complaint needs not detain us much. The respondent insisted on this ground that after finding that the respondent is entitled to repatriation costs, the High Court should have granted the prayer for subsistence expenses in his favour as it was one of the reliefs sought at the CMA which is intertwined with repatriation. Conversely, the appellant's counsel argued against the factual finding of the High Court on the respondent's place of recruitment and the finding on the appellant's liability to repatriate the respondent. We think the argument by the appellant's counsel, insofar as it is related to evidence, is an invitation to the Court to re-open factual issues regarding repatriation which is contrary to section 58 of the LIA. We forthwith decline such invitation. It is on record that, subsistence expenses from the date of termination on 10th January, 2023 to the date of repatriation was one of the reliefs clearly sought by the respondent in the referral form (CMA F.l) found at page 7 of the record of appeal. As far as repatriation is concerned, it was clearly raised by the respondent in his bid to fault the CMA's award before the High Court and was canvassed by the parties. In its deliberation, the High Court was satisfied that, the appellant did not cross-examine the evidence that respondent's place of recruitment was Matema village, Kyela District, Mbeya Region. The court was in the end satisfied that; there was 15 credible evidence that the respondent was recruited from Matema village. With that finding, the court was satisfied that the appellant was legally liable to repatriate the respondent. On that account therefore, the court held that the respondent is entitled to be repatriated and should as such be paid repatriation costs to his established place of recruitment. The above, necessarily, brings us to what we held in Nicholaus Hamis and 1013 Others v. Tanzania Shoe Co. Ltd and Another [2003] TZCA 23 that the law is settled that, an employer would be liable to pay her terminated employee subsistence allowance only if he was legally liable to repatriate him, and for that matter, legal liability to repatriate has to be first established. Similarly, in University of Dar es Salaam v. Jerome Tesha [2025] TZCA 13, this Court also stated that where an employer fails to pay repatriation allowance on time, she is obliged under section 43(1) (c) of the ELRA to pay it for the duration the terminated employee had been waiting for repatriation to his established place of recruitment. See also, Ganjaga Lameck Kafwamba v. Scania Tanzania Ltd [2024] TZCA 1053, Juma Akida v. SBC Tanzania Ltd [2020] TZCA 319; and Kiboberry Ltd v. John van der Voort [2022] TZCA 620. Indeed, in University of Dar es Salaam v. Jerome Tesha (supra), we clarified and held thus: 16 The argument that since the respondent was pursuing his case thus, he is not entitled to subsistence allowance covering the period is not appealing at all simply because had the appellant right after termination o f the respondent paid him his repatriation allowance timely, she could have discharged her duty, and there could be no arrears on subsistence allowance. Thus, as rightly argued by the respondent, his entitlement to subsistence expenses under section 43 (1) of the ELRA is consequential to his delayed repatriation. It is, if we may also add, payable upon his repatriation as a statutory obligation of the appellant provided under section 43 (1) (c)of the ELRA. Therefore, as long as the respondent is still yet to be paid repatriation costs, he is entitled to subsistence expenses from the date of his termination to the date of payment of the repatriation costs as provided by the law. With the above findings in mind, it was expected that, upon resolving the controversy on the appellant's liability to the respondent's repatriation and payment of repatriation costs, the High Court should have ordered payment of subsistence expenses sought by the respondent from the date of termination to the date of payment of repatriation costs. Accordingly, we find the complaint meritorious and we allow it. 17 On the complaint by the appellant and respondent regarding the award of 20 months' salary remuneration as compensation to the respondent for being unfairly terminated by the appellant, the bone of contention is on whether the court acted on wrong principle when it exercised its jurisdiction in granting such compensation. First and for most, since the matter at hand preceded the amendment of section 43 (1) by section 12 of the Labour Laws (Amendments) Act No. 4 of 2025, we do not think that the amended provision is applicable in the circumstances of the appeal before us as we held in Coca-Cola Kwanza Limited v. Erastus Vincent Mtui [2025] TZCA 703. We are in this respect settled that, the provision of section 43 (1) (c) of ELRA as it was then which provided for payment o f" compensation to the employee o f not less than twelve months' remuneratiori' is applicable in the instant appeal. We accordingly, do not buy the appellant's counsel's argument regarding application of the amended provision in this case. In view of the position of the law before the amendment, the CMA and the Labour Court was using their discretion in assessing the appropriate compensation in cases where the termination is both substantially and procedurally unfair, and in cases where termination is either substantially or procedurally unfair. Notably, the law by then only prescribed the minimum amount of compensation for all kinds of unfair 18 termination with no maximum limit. See also, Veneranda Maro & Another v. Arusha International Conference Centre [2022] TZCA 37 and Hussein Said Kayagila v. Bulyanhulu Gold Mine Limited [2023] TZCA 103. In Veneranda Maro (supra), we stated that: "Although the law subscribes the minimum amount to be awarded as compensation for termination which is not less than twelve months'salary, it is settled that the arbitrator or the Labour Court has discretion to decide on the appropriate award compensation which could be over and above the prescribed minimum. However, the discretion must be exercised judiciously taking into account all the factors and circumstances in arriving at a justified decision. Where discretion is not judiciously exercised, certainly, it will be interfered with by higher courts." Both the appellant's counsel and the respondent were in principle arguing that, the High Court acted on wrong principle when it exercised its discretion under section 43 (1) (c) of the ELRA as it was then in force. While the appellant argued that the amount awarded was, as a result, excessive, the respondent referring to rule 32 (5) of the LIR maintained that it was inadequate and far below what he had sought for, that is 96 months' salary remuneration. 19 In light of the above, we examined the impugned decision in a bid to find out whether the High Court exercised its discretion judicially taking into account all factors and circumstances of the case in arriving at the award of 20 months' salary remuneration as compensation to be paid to the respondent for unfair termination. In the said decision, it is crystal clear that the High Court was settled with an award of 20 months' salary remuneration as compensation for the termination of the respondent's employment which it found to be unfair both substantively and procedurally, and which was different from 96 months' salary remuneration sought by the respondent. In his reasoning on record in relation to the finding of granting an award of 20 months' salary remuneration, the learned Judge at page 648 of the record of appeal stated that the respondent's termination was unfair based on reason and procedure. In addition, the learned Judge also made reference to the circumstances on which the respondent was terminated. Revisiting the impugned decision in context and as a whole regard being had to the style taken by the learned Judge, we gathered that the circumstances referred by him were the fact that, the respondent worked with the appellant from 1s t September, 2014 to 6th January, 2023; the respondent had fully settled the loss forming the basis of the disciplinary charge laid against him before disciplinary hearing and which led to his termination on allegation of causing loss to the appellant although the charge had already been overtaken by events; unilateral deduction of his salary by the appellant; the disciplinary hearing which was conducted in a total violation of the respondent's right to be heard; and the hardship the respondent went through following the deduction of his salary in December, 2022. Indeed, at page 638 of the record of appeal, the learned Judge is on record raising a question which he proceeded to answer at pages 638 to 648 of the same record revealing the factors and circumstances detailed above which he undoubtedly considered in awarding such compensation. We think the considerations the learned Judge made and the amount of compensation he ended up with are all consistent with the principle we enunciated and invoked in a plethora of our previous decisions in favour of lesser compensation where the unfairness of termination is on procedural ground only than where the unfairness, as is in the instant matter, is on both procedural and substantive grounds. See for instance, Felician Rutwaza v. World Vision Tanzania [2021] TZCA 2. While 20 months' salary remuneration is above the minimum, it is in our view not manifestly low or excessive as the respondent and the appellant's counsel argued respectively. Notably, this Court is always reluctant to interfere with a 21 discretionary award of compensation unless it is shown to be inordinately low or excessive or based on wrong principle. We do not find anything from the rival submissions entitling us to interfere with such discretionary award. As such, the respective ground of appeal by both the appellant and the respondent challenging the amount of compensation awarded by the High Court is without merits. We dismiss it. With regard to the complaint by the respondent that the learned Judge erred in law by equating statutory compensation under section 43 (1) (c) of the ELRA to general damages which were claimed by the respondent, we are at the outset of the view that the complaint need not bother us much. We have had opportunity before to deal with more or less similar arguments in Qatar Airways vs Mafuli Hamadi Mfinanga [2025] TZCA 950, amongst others. Guided by the case of Qatar Airways (supra), we perused the referral form lodged by the respondent at the CMA as well as the opening statement of the respondent found at pages 13 to 14 of the record of appeal. We could not find anything distinctly pleaded in relation to the claim for general damages. In that regard, the learned Judge correctly applied the established principle that, the compensation provided under section 41 (1) (c) of the ELRA is the primary and comprehensive remedy for unfair termination and subsumes matters normally covered by general damages unless distinct, provable harm such 22 as reputational damage, is distinctly shown. Therefore, the sixth ground of appeal by the respondent lacks merit. It is dismissed. As a result of the above findings, the appeal by the appellant is dismissed in its entirety and that of the respondent is partly allowed to the extent of awarding him subsistence expenses from the date of termination to the date of payment of repatriation costs. In the circumstances, we make no order as to costs. DATED at TABORA this 5th day of May, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. J. MLACHA JUSTICE OF APPEAL The Judgment delivered this 6th day of May, 2026 in the presence of Mr. Abel Nyanda, learned counsel for the Appellant and Respondent who appeared in person unrepresented, via video link from High Court Mwanza and Mr. Magesa Fabiane Mgeta, Court clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL