Mwinyichande Aliy Dyandumbo vs Chama Cha Ushirika wa Akiba na Mikopo (Mlimani Saccos Ltd) (Civil Appeal No. 43 of 2024; Labour Revision No. 120 of 2023) [2026] TZCA 486 (5 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: SEHEL. J.A.. KIHWELO. J.A. And AGATHO. J J U CIVIL APPEAL NO. 43 OF 2024 MWINYICHANDE ALIY DYANDUMBO ................................................ APPELLANT VERSUS CHAMA CHA USHIRIKA WA AKIBA NA MIKOPO (MLIMANI SACCOS LTD) .......................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Qpiyo, J,) dated the 31s t day of October, 2023 in Labour Revision No. 120 of 2023 JUDGMENT OF THE COURT 2ffh April & 5th May, 2026 KIHWELO. 3.A.: The appellant, Mwinyichande Aliy Dyandumbo, was on 1s t June, 2016 employed by the respondent, a registered Saving and Credit Society, in the capacity of an accountant (Loan Officer), on a fixed term contract of four years subject to yearly performance review and renewable by mutual consent. The appellant's fixed term contract was renewed from time to time and the last one came to an end on 31s t May 2020. It occurred that, on 16th February, 2022 the appellant was served with a notification of variation in the terms of his contract of employment which varied his contractual terms. According to that notice of variation his contract was to l run for 24 months retrospectively from 1s t June, 2020 to 31st May, 2024. The appellant was simultaneously given leave without pay on account of operational reasons since the respondent was denied license. It was this action which irked the appellant who was compelled to approach the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/ DSM/ UBG/ 48/ 2022/ 25/ 2022 . In that complaint before the CMA, the sticking point according to CMA Form No. 1 was breach of contract and therefore, the appellant claimed for Tanzanian Shillings 17,600,000.00 being salary arrears from July, 2021 up to and including May, 2022. He further claimed Tanzanian Shillings 36,000,800.00 being 23 months remuneration for the remainder period of the fixed term contract, Tanzanian Shillings 19,800,000 being gratuity making the total of Tanzanian Shillings 74,200,000.00. In the adversary side, the respondent stoutly resisted the appellant's claims. It was the respondent's version of the story that, the appellant was employed on fixed term contract and his final contract came to an end on 31s t May, 2022. The respondent firmly denied that there was any breach of contract and therefore, she considered all other incidental claims to be unsubstantiated. 2 At the height of the hearing of the complaint, the CMA found it proven that the claims by the appellant had merit and it went ahead to award him Tanzanian Shillings 59,000,000.00. The decision by the CMA annoyed the respondent who moved the High Court of Tanzania, Labour Division in Labour Revision No. 120 of 2023 ("the High Court"), seeking it to call for the records, proceedings and the subsequent award of the CMA in order to satisfy itself as to the appropriateness of the award. The respondent further sought to move the High Court to subsequently quash and set aside the award and orders made therein. Upon hearing the parties on merit, the High Court partly reversed the CMA award on the basis that the respondent was justified to vary the terms of the contract in terms of clause 12.0 (c) of the employment contract. However, the High Court Judge took issue with the simultaneous serving upon the appellant of both the letter of variation and the notice of leave without pay which to her meant immediate loss of income to the appellant and that seemed to her to be unfair treatment. We shall discuss this further, at a later stage of this judgment, but suffices to say at the moment that, on the basis of this, the High Court went ahead to award the appellant salary from the date of notice to the date the variation contract expired, that is, from 16th February, 2022 to 30th May, 2022 to the tune of Tanzanian Shillings 5,650,000.00. 3 It is this High Court decision which precipitated the instant appeal before us which is grounded on two points of grievance. One; the High Court Judge erred to find that the appellant is not entitled to be paid leave without pay; and two, the High Court Judge erred to provide improper interpretation of the law on leave without pay. Equally, the respondent discontent with the impugned judgment lodged a cross appeal before the Court which was predicated on four points of grievance which may be paraphrased as follows; One, that, the High Court Judge erred to order payment of Tanzanian Shillings 5,650,000.00, salaries from the date of notice to the date the variation contract expired; two, that, the High Court Judge erred to order payment of those salaries and disregarding the respondent's economic circumstances that led to the variation of the contract; three, that, the High Court Judge erred to order payment of those salaries which were not pleaded by the appellant and testified at the CMA, and; four, that, the High Court Judge erred to order payment of those salaries while acknowledging that the respondent complied with the variation contract. Before us, on 20th April, 2026 when the matter was set for hearing, the appellant appeared in person unrepresented, whereas Ms. Otilia Nyamwiza Rutashobya, learned counsel appeared for the respondent as it was the case before the CMA and the High Court. 4 When invited to argue his appeal, the appellant merely prayed to adopt his written submissions without more. In his written submissions, the appellant was fairly brief. Submitting in support of the first ground of appeal he contended that, the respondent violated the provisions of the law, citing section 3(1) (2) and (4) of the Employment and Labour Relations Act, Cap. 366 R.E. 2023, ("the Act"), and argued that, it was wrong to give the appellant leave without pay. He referred us to the observations by the High Court Judge at page 429 of the record of appeal in which the High Court Judge in his opinion found not fair to have issued the appellant with both the notice for variation of contract and the notice for leave without pay at the same time and criticized the High Court Judge for not amplifying with the provisions of law that now-days there is no leave without pay. In support of the second ground of appeal, the appellant submitted that, the High Court Judge erred to interpret section 3 (1) (2) and (4) of the Act, concerning leave without pay and therefore, occasioned illegalities. The appellant referred us to the observations of the High Court Judge at page 429 of the record of appeal to demonstrate his proposition of the illegality complained of. In all, he urged us to allow the appeal. Conversely, Ms. Rutashobya when she took the stand to respond to the appeal, she adopted the written submissions which were earlier on lodged 5 without more. In the written submissions, the learned counsel predicated her submissions with a little bit of exposition in that the appellant's written submissions violated rule 106 (2) (a), (b), (c) and (d) of the Tanzania Court of Appeal Rules, ("the Rules"), for lacking concise statement of material facts to the appeal, statement of issues arising in the appeal, statement of issues or questions the Court has to consider in relation to the appeal and relevant laws, if any. Ms. Rutashobya further submitted that, the written submissions further violated the provisions of rule 106 (4) of the Rules, as they were presented in an ambiguous manner and not portraying clear and adequate understanding of the questions that requires consideration by the Court. She therefore, implored on us not to entertain them. In response to the first ground of appeal, Ms. Rutashobya had an opposing view in that, the appellant wrongly cited section 3 (1) (2) and (4) of the Act, as the law governing leave without pay. In her considered submissions, the above provisions deal with objects of the Act, while the provision of section 32 of the Act deals with annual leave and subsection (4) of section 32 deals with payment in lieu of notice. Elaborating, the learned counsel submitted that, the appellant misunderstood the observations by the High Court Judge at page 429 of the record of appeal. While the observations by the High Court Judge 6 focused on the appellant being given both the notice of variation of contract and the notice for leave without pay, the appellant mistakenly had a view that the High Court Judge dealt with extensively, the complaint on leave without pay. The learned counsel was therefore, of the view that, the High Court Judge could not amplify that complaint with any provision of the law since the notice of variation of contract was given to the appellant in terms of clause 12.0 (c) of the Contract of Employment, Exhibit PI. To support her proposition, she referred us to page 62 of the record of appeal where the clause of the Contract of Employment is found as well as pages 427 and 428 of the record of appeal where the High Court Judge made a finding that clause 12.0 (c) of the Contract of Employment allowed the respondent to make variation. In further responding to the first ground of appeal, the learned counsel briefly submitted that, the issue of payment of leave without pay was not pleaded, by the appellant at the CMA and therefore, this cannot be subject to appeal before this Court. Reliance was placed in the case of Yara Tanzania Limited v. Ikuwo General Enterprises Limited [2022] TZCA 604 TANZLII, in which we stated with sufficiency lucidity that, parties are not allowed to depart from their pleadings by raising new claim which is not found in pleadings or inconsistent to what is pleaded. She argued that this ground has no merit. 7 In response to the second ground on the failure to interpret section 3 (1) (2) and (4) of the Act, concerning leave without pay, Ms. Rutashobya reiterated her earlier submission that the section was wrongly cited because it does not relate to leave without pay. She held the view, and we think rightly so, in our considered mind, that the appellant's main complaint before the CMA was based on the breach of contract by varying the Contract of Employment and not payment of leave without pay. In support of her proposition, she referred us to the closing submissions at pages 16 to 19 of the record of appeal and page 428 of the record of appeal where the impugned judgment is found. She equally urged us to dismiss this ground of appeal for being unmerited. Turning to the cross appeal, Ms. Rutashobya prayed to adopt the written submission in support of the cross appeal and prefaced her submission by arguing the first and the fourth grounds of the cross appeal conjointly, since they are interwoven, and the common complaint is that the High Court Judge awarded payment of Tanzanian Shillings 5,650,000.00, as salaries from the date of notice to the date the variation contract expired without any legal basis. She took the view that, in arriving at her decision the High Court Judge was speculative and full of conjecture citing the observations of the High Court Judge at pages 429 and 430 of the record of appeal. In her view, the observation made by the High Court Judge was not sufficient reason to award payment of salaries from the date of notice to the date the variation contract expired. She urged us to allow these grounds of appeal. In support of the second ground of the cross appeal, the learned counsel was brief and submitted that, it was erroneous and misleading for the High Court Judge to award payment of salaries from the date of notice to the date the variation contract expired in total disregard of the respondent's economic circumstances that led to the contract variation. Elaborating, the learned counsel argued that, while the High Court Judge acknowledged that the arbitrator disregarded the respondent's circumstances that led to the variation of the appellant's contract as resulting from denial of license which affected contractual employees, but still, the High Court Judge went ahead to award payment of salaries from the date of notice to the date the variation contract expired. For her, that was erroneous and misleading considering that the respondent had no license to do business and therefore, resort to variation of contract and issuing leave without pay was inevitable in the circumstances obtaining at that time. She equally urged us to allow this ground. Submitting in support of the third ground of the cross appeal, Ms. Rutashobya criticized the High Court Judge for awarding payment of salaries from the date of notice to the date the variation contract expired which were neither pleaded nor proved before the CMA. In her view, the respondent was 9 not afforded an opportunity to address on such issue. She further argued that, since parties did not address the court in respect of that matter, the impugned judgment is liable to be quashed and set aside. She paid homage to the case of Dr. Abraham Israel Shuma Muro v. National Institute for Medical Research and Another [2021] TZCA 183 TANZLII, in which we cited our earlier decision in Melchiades John Mwenda v. Gizelle Mbaga (Administratrix of the Estate of John Japhet Mbaga and Others [2020] TZCA 1856 TANZLII, for the proposition that the court will grant relief which has been prayed for. In all, she urged us to allow the cross appeal. The appellant in rejoinder submission in relation to the appeal, he reiterated his earlier submission and insistently submitted that he deserves to be paid as he was given leave without pay and without there being any justification. In response to the cross appeal, the appellant strictly opposed it and argued that he deserves to be paid according to the award he was given at the CMA and not to leave empty handed. He further begged us to interpret the provisions relating to leave without pay accordingly. We shall preface our deliberation with the complaint that the appellant's written submissions violated rule 106 (3) of the Rules, for lacking concise 10 statement of material facts to the appeal, statement of issues arising in the appeal, statement of issues or questions the Court has to consider in relation to the appeal and relevant laws, if any. She further contended that the appellant's written submissions violated the provisions of the Rules, as they were presented in an ambiguous manner and not portraying clear and adequate understanding of the questions that requires consideration by the Court. While we entirely agree with the learned counsel for the respondent that in terms of rule 106 (3) (a) to (d) of the Rules, the appellant do not seem to have followed the letter and spirit of that provisions, particularly on the need for the submissions to have a concise statement of material facts to the appeal, statement of issues arising in the appeal, statement of issues or questions the Court has to consider in relation to the appeal and relevant laws, if any, but think this should not detain us. Quite understandably, the appellant is a lay person who appeared in person before us without any legal representation, and therefore, it will not serve any useful purpose for us to ignore them as Ms. Rutashobya has urged us to do. In any case, rules of procedures are handmaids of justice. If we ignore the appellant's submissions, there is no way out the appellant can ably argue his appeal in terms of rule 106 (10) (b) and rule 106 (11) of the Rules and assist this Court in reaching to a just decision. We thus, dismiss the respondent's counsel urge. l i To resume to the appeal before us, after our serious consideration of the grounds of appeal and the rival submissions by the parties, we, on our part, are of the view that this appeal can sufficiently be disposed of within the narrow circumference argued by the learned counsel for the respondent that the respondent acted within the purview of the contract of employment citing clause 12.0. This means that? the arguments on misinterpretation of the provisions of sections 3 of the Act which merely deals with the principal objects of the Act and section 32 of the Act which relates to annual leave generally, of no relevance. It is not insignificant to remark by way of postscript that, the relation between the parties was governed by contract of employment which was duly executed as stated before in this judgement, and therefore, their dispute is subject to the scheme of that contract they freely entered upon. For the better understanding of the terms of the Employment Contract, Exhibit PI between the appellant and the respondent, we think, it is desirable to reproduce the relevant parts of clause 12.0 which reads: "12.0 Further Conditions of the Contract (a) N/A (b) N/A (c) Variation in the terms of this Contract 12 The right is reserved to the employer to make changes to any of the provision of this Contract and the Employee will be notified of such changes in writing. Where a proposed change is not material, the Employer shall notify the Employee of the date on which the changes is to become operative. Where a proposed change is material, the Employer shall give the Employee at least twenty-eight days' written notice of the proposed change and unless the Employee objects in writing within the period specified in the notice, the Employee shall be deemed to have accepted such changes." On a careful reading and understanding of the above provision, we think that, clause 12.0 (c) is very clear and unambiguous that the right is reserved to the employer to make variations to any of the provision of the Employment Contract and the Employee will be notified of such changes in writing. For that, the provision above is very categorical and needs no further emphasis. Now, back to the appeal before us, the appellant was served with notification of variation of the terms of his contract of employment on 16th February, 2022 which the counsel for the respondent heavily relies on, and that is the crux of the matter before us. The appellant on his part, faults the High Court Judge on account that the respondent violated the provisions of the law, 13 but quite unfortunate, and for an obscure cause, the appellant cited to us section 3 of the Act which in our view, is not relevant in the appeal before us. Even if we assume, merely for the sake of arguments that the appellant meant section 32 of the Act, that provision deals with annual leave generally and not leave without pay. We are satisfied, as the High Court Judge did, that the respondent had justifiable reasons to vary the appellant's Employment Contract in terms of clause 12.0 (c). To hold otherwise would be absurd and would lead to undesirable consequences and that, we think, cannot have been the intention of the parties. A thread runs through our contract law that, effect must be given to the reasonable expectations of honest parties. The function of the law of contract is to provide an effective and fair framework for contractual relationships and dealings. Times without number we have held that, the function of courts is to enforce and give effect to the intention of the parties as expressed in their agreement. Contracts belong to the parties who are free to negotiate and even vary the terms as and when they choose. On the same spirit parties are bound by agreements they freely enter upon under the cherished doctrine of sanctity of contract. We stated this with sufficiency lucidity in the case of Abualy 14 Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R. 288 and cases that followed thereafter that: "the principle of sanctity of contract is consistently reluctant to admit excuses for non performance where there is no incapacity, no fraud (actual or constructive) or misinterpretation ; and no principle of public policy prohibiting enforcement" For completeness of record we hold that, the appellant was bound by the Employment Contract, Exhibit PI and therefore, the respondent was justified to issue the notification of variation in the terms of the appellant's contract of employment as he did. In the absence of allegations for incapacity, fraud, misinterpretation or public policy prohibiting enforcement of that contract, the appellant cannot be heard to complain. We thus, find the grounds of appeal are unmerited. Next, we will deliberate on the cross appeal by the respondent. It is instructive to point out that, although the respondent raised three points of grievance which were argued as three grounds separately, but they all boil down to one main point of complaint since they are interwoven. The main complaint is that, the High Court Judge wrongly awarded the appellant 15 Tanzanian Shillings 5,650,000.00, as salaries from the date of notice to the date the variation contract expired without any legal basis. We hasten to remark that, in deliberating this complaint we need not belabor ourselves much on this matter and the reason is not far-fetched. The answer to this complaint lies in the observations by the High Court Judge in the record of appeal. For the sake of precision and clarity, we will let the record of appeal appearing at pages 429 and 430 paint a picture. The High Court Judge observed that: "In employment arena ; this is unlikely to be seen as fair treatmentbecause of the devastating effect it has to the employee. Engaging employee in leave without pay still maintains his hopes of coming back to work. But doing that and at the same time significantly reducing her contract duration shutters all those hopes. For the reason, as the contract duration was made to be too short to save the same purpose of relieving the employer of the same obligation of salary payment, it is my considered view that, it was not fair for the employer to engage the same employee in both leave without pay and significant reducing the contract period. I agree, both are employer rights under the contract of employment, but both should not be exercised 16 concurrently. For that reason, it is my considered view that, the respondent is entitled to payment of the salaries from the date of notice to the date the variation contract expired. That is from 16thFebruary 2022 to 3(Jh May 2022 which comes to Tshs 5,650,000.00." The question we are enjoined to answer at this juncture is whether the High Court Judge was justified to award that amount in the absence of a clear provision of the law, and having made findings that the respondent was justified to vary the contract of employment. On his part, the appellant firmly maintained that he was entitled to the awarded amount and was not ready at all, to take no for an answer and leave empty handed. We should interpose here and observe that, the observations by the High Court Judge were more sentimental than legal observations founded on legal principles. Judicial discretion is a tool, or device in the hands of a court for doing justice or, in the converse, avoiding injustice. Whilst we hesitatingly understand the High Court Judge feelings, but sentimental values or conjecture have little if not, no place at all, in the administration of justice and therefore, the High Court Judge erred to apply sentiments in awarding the appellant TZS. 5,650,000 which is not provided by law. 17 In the appeal before us, it is clear on record that, the prayer for leave without pay was not part of the original claims in CMA Form No.l in which the nature of dispute was breach of contract and the appellant claimed salary arrears from July, 2021 up to and including May, 2022, remuneration for the remainder period of the fixed term contract and gratuity. We find considerable merit in the argument by the learned counsel for the respondent that, it was erroneous and misleading for the High Court Judge to award for something which was not prayed for. The position of the law is long settled and clear that, the court will grant only a relief which has been prayed for. There is, a considerable body of case law in this. See, for instance James Funke Gwagilo v. Attorney General [2004] T.L.R. 161 and Hotel Travertine Limited & 2 Others v. National Bank of Commerce [2006] T.L.R. 133 and many others which followed. It is, therefore, inconceivable, that the High Court Judge made that award which was not prayed for. That said, we think, it will only be pretentiously academic to deal with the rest of the arguments. We thus, find the grounds of the cross appeal to be merited. When all is said and done, we find no merit in the appeal. Consequently, we dismiss it in its entirety. However, we find merit in the cross appeal which we allow it and therefore, the award of TZS. 5,650,000.00 by the High Court is 18 hereby set aside. We make no order as to costs this appeal stemming from a labour matter. DATED at DAR ES SALAAM this 4th day of May, 2026. B. M.A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 5th day of May, 2026 in the presence of appellant in person/unrepresented, in absence of the respondent and Mr. Oscar Msaki, Court Clerk being present; is hereby certified as a true copy of the original.