Flordeliza Bravo vs CSI Electrical Limited (Civil Appeal No. 523 of 2022) [2026] TZCA 458 (29 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. J.A.. MURUKE 3.A. And MGEYEKWA. J.A. CIVIL APPEAL NO. 523 OF 2022 FLORDELIZA BRAVO.....................................................................APPELLANT VERSUS CSI ELECTRICAL LIMITED ........................................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Rwizile. dated the 17th day of August, 2022 in Revision No. 376 of 2021 JUDGMENT OF THE COURT 15t h & 29t hApril, 2026 MURUKE. J.A.: The present appeal, originates from the decision of the High Court in Labour Revision No 376 of 2021, dated 17th August, 2022, in which the respondent's application for revision was allowed, and the CMA award in favor of the appellant was subsequently quashed. According to the record of appeal before us, the appellant had an employment contract with the respondent that commenced on 15th July, 2014 to 14th July, 2016 as EDSM Intergrator. She had a work and residence permit, which allowed her to reside in Tanzania and work for the respondent. i However, on 24th June, 2015 the appellant signed another contract with the respondent that commenced on 1s t July, 2015 to end 30th July, 2017 as an HSE QAQC Manager. The appellant used the same work and residence permit of the previous contract issued earlier. That sometimes in 2018, the appellant after handing over the respondent's properties, got an opportunity to work with CSI Energy Group (a respondent's sister company) in Mauritius. The appellant was paid her full and final entitlements, including relocation fee. She went on leave from 17th December, 2018 to 7th January, 2019 but did not report at work on the reason that her children were sick. The appellant requested for her salary to buy a ticket to Mauritius. Despite being provided with USD 3,637.00, deposited in her account, yet she did not turn up leading to termination of her employment. Dissatisfied with the termination, the appellant filed a dispute at CMA claiming unfair termination of the employment which was decided on her favor, in that the respondent was ordered to pay the appellant 16 months salaries equal to USD 123,024.00. The respondent was aggrieved, thus filed revision at the High Court Labour division in which the CMA award was quashed and set aside. The appellant was dissatisfied with the decision, thus filed the present appeal raising 8 grounds of complaint. At the hearing of the appeal, Mr. Kheri Macdavies Kusekwa and Ms. Tunu Mbaraka Alaudin, both learned counsel, represented the appellant and 2 the respondent respectively. Following a brief discussion with the appellant's counsel on the grounds of appeal, he rightly abandoned the first to seven grounds, and remained with only one ground number 8 that reads as follows: "That the High Court erred in iaw for failure to revise the CMA Award that he ended up holding that the trial CMA had to deal with the matter of residence and work permit when the facts on work and residence permit were new in the court of revision and were not canvassed during trial at the CMA nor the permits were tendered and admitted by the same". Supporting the above ground, the appellant counsel submitted that matters and evidence on work and residence permit were not raised nor canvassed during arbitration at the CMA as a trial court and that at the revision stage the High Court ought not to have allowed the respondent to introduce new facts and evidence, that is the residence and working permits and rely on them in determining the issue of jurisdiction at revision stage. It was further submitted that, looking at certified proceedings of CMA from pages 138 to 182 and the award from page 259 to 280 of the record does not indicate that the respondent pleaded, adduced nor tendered anything in relation to residence and working permits during trial at the CMA. Therefore, introducing new matters, facts and evidence at the stage of revision is 3 nothing than an afterthought as the respondent raised it to counter the decision of the arbitrator's CMA award at revision stage that the appellant's residence and work permits had expired when she instituted the dispute at the trial CMA. To support his argument appellant counsel cited to us the High Court case of Rocky City Tours Ltd vs Andy Nurry, Revision No 69 of 2013, High Court at Mwanza, (unreported) at page 7 where it was observed that: "It was in evidence before CMA that such permit was not obtained. In the light of those facts the CMA acting reasonably should have noted that there was jurisdictional issue". Mr. Kusekwa further insisted that the appeal at hand is different, in that matters of expiry of work and residence permits were not canvassed, neither evidence with regards the same was led and tendered. Thus, the trial CMA had jurisdiction to try the dispute. In totality the High Court on revision, ought to have found that there was no special circumstance warranting to entertain new facts and evidence, while there was no evidence before the CMA. In totality, the appellant's counsel insisted for appeal to be allowed by setting aside the Judgment and Decree of the High Court and affirm the CMA award entered in favor of the appellant. The respondent's counsel submission was brief but to the point, when she submitted that, issue of residence and working permits of the respondent touches jurisdiction of the CMA to adjudicate the dispute. Jurisdiction issue is paramount in any court proceedings. It is fundamental that in any trial even if it is not raised by the parties at the initial stages, it can be raised and entertained at any other stage of the proceedings in order to ensure that the court is properly vested with jurisdiction to adjudicate the matter before it. To support her argument Ms. Alaudin cited to us the following unreported cases. National Insurance Corporation, and Consolidated Holding Corporation (formarly PSRC) vs Johanes Jeremiah and Two Others, Civil Appeal No 61 of 2008, Mwananchi Comunications Limited and Two others vs Joshua K. Kajula and Two Others, Civil appeal No 126/01 of 2016 and RSA Limited vs Hanspaul Automechs Limited and Govinderajan Senthil Kuml, Civil Appeal No 179 of 2016 (unreported). It was further submitted for the respondent that the appellant renewed her contract with the respondent from 1s t June2017 to 30th June 2020. The contract was valid at the time of its renewal, however the same became void the minute the work and residence permits of the appellant expired, because the appellant ceased to be a competent party to contract in terms of section 11 of the Law of Contract Act [ CAP 345 R.E. 2002]. 5 More so, Non - citizen (Employment Regulations) Act, 2015 as well as Immigration Act [CAP 54 R.E.2016], prohibits engagement of foreigner in any occupation unless the said foreigner has both valid work and residence permits. To support her point, the respondent counsel cited a persuasive decision in the case of Victor Emmanuel Shubin vs Ernest & Young, Revision No. 406 of 2020, where it was insisted that " In my understanding, from the clauses stated above, notwithstanding the agreed period, the contract shall cease at the expiry of the work permit". It is clear from the law and case law cited above that a foreigner who does not possess valid work permit and residence permit like the appellant is disqualified from engaging in employment in the United Republic of Tanzania insisted the respondent's counsel, who then prayed for dismissal of the appeal. In rejoinder Mr. Kusekwa did not say much, apart from repeating his submission in chief, then pressed for the appeal to be allowed. Having considered arguments by learned counsel for the appellant and the respondent, gone through the submission earlier filed for and against ground 8 of the appeal, main issue for determination is whether the High Court properly decided that the CMA had no jurisdiction to try the dispute. Before resolving the issue above, it is worth noting that in an employment contract, just like any other contracts is subject to the general principles of law of contract and legal consequences thereof as provided under the law of contract, (CAP 345 R.E. 2019). The respondent's complaint at the High Court on revision is that the appellant's residence and working permit was not valid at the time of termination. The respondent filed revision and complained on the issue in the affidavit in support of the revision. It is worth noting that affidavit deposition is evidence on oath reduced into writings. Such evidence like any other type of evidence given on oath, or affirmation can only be controverted by evidence on oath. When the issue being fought on the basis of affidavit as was the case in the revision at the High Court, the evidence is what is averred in the affidavit on oath or affirmation. Equally so, where the contents of a counter affidavit specifically attack or challenge the specific allegations of fact made in the adversary's affidavit, the court is duty bound to give the affidavit evidence in the counter affidavit a worth considerations. The appellant made an evasive denial of the allegations contained in the affidavit in support of the revision. The law is also settled, that evasive denials in a counter affidavit, are often taken or countered as admission because evasive denial alone without more cannot amount to controverting the evidence earlier averred. The appellant's evasive denial of the fact averred by the respondent at the High Court that the appellant had no valid residence and working permit at the time she was terminated is accepted as the true facts on oath not controverted by the appellant at the High Court on revision. The law, the National Employment and Promotion Service Act, (CAP 243 R.E.2002) NEPSA section 26 (1) (2) provides as follows: "26 (1) No person shall employ any foreigner, and no foreigner Shall take up any employment with any employer, except under and in accordance with a work permit issued to such foreigner. 26 (2) Any person who contravenes the provisions of this section commits an offence and is liable on conviction, to a fine not less than one million shillings or to imprisonment for a term not less than six months or to both such fine and imprisonment". More so, the Immigration Act (CAP 54 R.E.2016) prohibits a non citizen from being engaged in paid employment without permit. The same provides as follows: "16 (1) No person shall engage in paid employment under an Employer resident in Tanzania except under a permit issued in accordance with the provisions of this Act". 8 The appellant, a non-citizen did not prove to have valid residence and working permit with the respondent. Thus, there cannot be any valid employment contract with the respondent in the eyes of the law. The appellant was not an employee of the respondent to be able to file a dispute with the CMA for lack of an employment relationship recognized by law. Consequently, the High Court Judge rightly in our view, quashed the CMA award for lack of jurisdiction to entertain the dispute that was based on illegal and invalid employment relationship. In the end, the present appeal is without merits, thus dismissed with no order as to costs. It is so ordered. DATED at DAR ES SALAAM this day 28th of April, 2026. Judgment delivered this 29th day of April, 2026 in the presence of Mr. Boniventure Dunda, learned counsel for the Appellant, Ms. Tunu Alaudin, learned counsel for the Respondent and Mr. Ladislaus Msuba, Court Clerk; is hereby ce G. A. M. NDIKA JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL