Pascal Bandiho vs Jandu Plumbers Ltd (Civil Appeal No. 66 of 2023) [2026] TZCA 448 (29 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: FIKIRINI. 3.A. RUMANYIKA, J.A. And ISSA, J.A.) CIVIL APPEAL NO. 66 OF 2023 PASCAL BANDIHO.................................................................... APPELLANT VERSUS JAN DU PLUMBERS LTD......................................................... RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania (Labour Division) at Arusha ( l i g a n f l a z J ) dated the 9th day of June, 2022 in Labour Revision No. 11 of 2021 JUDGMENT OF THE COURT 20th & 29th April, 2026. FIKIRINI, J.A.: The appellant, Pascal Bandiho, challenges the ruling and order of the High Court of Tanzania (Labour Division) delivered on 9th June, 2022 in Revision No. 11 of 2021. Dissatisfied with the entire decision, he appeals against both the High Court's jurisdictional findings and its substantive determination of the dispute originating from the i

Commission for Mediation and Arbitration (the CMA) at Musoma in Labour dispute No. CMA/MUS/165/2020. The background to this matter is best told as follows: that it all started by the appellant's employment with the respondent, Jandu Plumbers Ltd, as a Land Surveyor on 22n d August, 2019, initially under probation, later claimed to have converted into a fixed-term contract. His employment was terminated on 28th August 2020, which he alleges was unfair both substantively and procedurally. He cites lack of valid reasons, denial of due process, and breach of natural justice, further arguing that the respondent acted simultaneously as complainant, investigator, and decision-maker, undermining impartiality. Before termination, the appellant had raised issues concerning salary discrepancies, contractual terms, and unlawful deductions. The matter was referred to the CMA, where mediation failed and arbitration ensued. The CMA ruled against the appellant. He then sought revision before the High Court (Labour Division, Arusha Registry), which dismissed the case for want of jurisdiction. Aggrieved, the appellant now appeals to this Court, contesting both procedural and substantive findings of the lower courts, advancing ten grounds of appeal namely:-

1. The learned trial Judge erred in law in holding that the High court of Tanzania (Labour Division) does not have jurisdiction to hear and determine the matter contrary to Article 108 (1), (2) of the Constitution of the United Republic of Tanzania, Cap. 2 and Section 2 (1), (2) of the Judicature and application o f Law, Cap. 358 R.E2002, (JALA).

2. The learned trial Judge erred in law by causing the defect or error or irregularity in the legal proceedings o f the case. (The High Court turned its self into witnesses of the facts in dispute).

3. The Commission for Mediation and Arbitration (CMA) erred in law and fact by failing to recognize that, the reason for termination of employment was both substantively and procedurally unfair.

4. The Commission for Mediation and Arbitration (CMA) erred in law and in fact by violating the Principle o f Natural Justice, while it was put to its attention as per records, i.e the respondent herein had been a judge o f his own cause. He was a complainant, prosecutor/charging Judge and suspender.

5. The Commission for Mediation and Arbitration (CMA) erred in law and in fact by failing to recognize that the punishment imposed by the respondent was not appropriate, i.e the seriousness of the misconduct in the light o f the nature of the job and circumstances in which it occurred could not be the valid reason to terminate the appellant. 3

6. The Commission for Mediation and Arbitration (CMA) erred in law and in fact by failing to recognize that, a contract between appellant and respondent was a contract o f a specific period of time, as stipulated under section 14 (2) of the Labour Act No. 6/2004 and Section 2 (1) of the Law of Contract Act. Cap. 345

7. The Commission for Mediation and Arbitration (CMA) erred in law and in fact by failing to recognize that, the respondent's failure to renew a fixed term contract on the same or similar terms if there was a reasonable expectation of renewal was unfair termination of employment. As stipulated under section 36 (a) (iii) o f the Employment and Labour Relations Act No. 6/2004 read together with Rule 4 (4) o f GN 42/2007.

8. That, the Commission was acting improperly when failed to recognize that the respondent did not prove the respective case through evidence and witness, contrary to Rule 25 (1), a (i) of the Labour Institutions (Mediation and Arbitration Guidelines) G.N No. 67 o f2007.

9. The Commission for Mediation and Arbitration (CMA) erred in law and in fact by failing to recognize that, the applicant was not employed as a non-skilled Labour rather was employed as professional cadre (Land surveyor). The parties had a contract on probation commenced on 22/08/2019 and expired on 22n d 11, 2020 it was monthly based. DW2 by receiving directives from the

head office and not informing the applicant concerning the changes o f the contract. This goes contrary to Section 15 (4) of the Employment and Labour Relation's Act, No. 6/2004. 10. The Commission for Mediation and Arbitration (CMA) erred in law and in fact by failing to recognize that, the appellant being employed as a Land Surveyor to the Company he was an employee of a category protected under the unfair termination under Rule 11 o f the GN 74/2017. At the hearing of this appeal, the appellant appeared in person, unrepresented, while the respondent was represented by Mr. Valentine Nyalu, learned advocate. Both parties adopted their previously filed written submissions. The respondent's counsel had to sets of arguments. First, he observed that grounds 3-10 of the appeal improperly challenge the decision of the CMA as it contravenes section 4 (1) (now 6 (1)) of the Appellate Jurisdiction Act, Cap 141 (the AJA), which restricts the Court of Appeal's jurisdiction to matters originating from the High Court or subordinate courts with extended jurisdiction. The grounds 3-10 are thus incompetent and not fit for determination by the Court. Second, that the 1s t and 2n d grounds of appeal, concern the jurisdiction of the High Court. The High Court dismissed the revision 5

application on a Preliminary Objection (P.O.) raised by the respondent. The appeal was therefore not determined on merit which would have warranted the appellant to approach the Court. Mr. Nyalu supported the dismissal, arguing that striking out would have allowed the appellant to re-file the matter before a court lacking jurisdiction. The central issue is whether the High Court, Arusha Registry, lacked jurisdiction to entertain a revision application arising from the Commission for Mediation and Arbitration (CMA) at Musoma. It is trite law that jurisdiction is fundamental, going to the very root of a court's authority. As emphasized in Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda & Others [1995] T.L.R. 155, therefore it must be ascertained at the commencement of proceedings from the pleadings. Proceeding on assumed jurisdiction risks rendering the entire trial null and void. In the appeal before us, the dispute originated in Musoma and was determined by the CMA at Musoma. Dissatisfied with the CMA award, the appellant filed a revision application at the High Court Labour Division, Arusha Registry, contending that Article 108 of the Constitution 6

of the United Republic of Tanzania, 1977 as amended from time to time, vests the High Court with exclusive jurisdiction nationwide. We are without a flicker of a doubt that the appellant misapplied Article 108. While the High Court indeed enjoys broad jurisdiction, this does not override procedural rules governing territorial competence. Instruments such as the Chief Justice's designation notices and the High Court Registries (Rules) (Amendment) Rules, 2021 (G.N. No. 638 of 2021), regulate administration and case allocation among registries. G.N. No. 209 of 2010 further designates zonal centres, confining jurisdiction to matters arising within their territorial limits. The respondent correctly argued that allowing parties to file in any registry would defeat the purpose of establishing multiple registries. We have in our previous decision in Abdallah Ally Selemari t/a Ottawa Enterprises (1987) v. Tabata Petrol Station Co. Ltd & Another, [2019] TZCA 310, in which we clarified that suits must be filed where the cause of action arose or where the defendant resides or works for gain. More so, such adherence would do away with confusion and chaotic administration of justice and unnecessary delays. 7

Given that the cause of action arose in Musoma and was handled by the CMA there, the proper forum was the High Court Musoma Registry. Filing at Arusha was procedurally improper and legally untenable. The High Court was correct not to entertain the matter for want of jurisdiction. On the 3-10 grounds, we are at one with Mr. Nyalu that powers of this Court are limited to hearing and determination of appeals heard and determined by the High Court or Subordinate courts with Extended Jurisdiction. Section 6 (1) of AJA, provides that:- n 6.-(l) The Court shall have jurisdiction to hear and determine appeals from the High Court and from subordinate courts with extended jurisdiction." We expressed ourselves with precision in the cases of Sadick Japhary @Masunzu v. R, [2022] TZCA 675 and Asael Mwanga v. R, Criminal Appeal No. 218 of 2007 (Unreported), cited to us by the respondent's counsel. In Asael Mwanga v. R, the Court explained clearly that it cannot entertain any matter which has not been properly processed, by saying:- "Now, all those grounds, whatever may be their merits, should have been argued in the High

Court had the appellant lodged an appeal to that court. In the event the High Court failed to discuss and decide them satisfactorily, the appellant could resort to this Court. What the appellant is now trying to do is turn this Court to the first appellate court after the judgment o f the District Court... We must, therefore, decline to turn this Court into a first appellate court from decisions o f the District Court. In the result we express no opinion on the grounds o f appeal which the appellant brought to this Court." Likewise, in the present appeal, since the High Court sustained the PO raised and dismissed the appeal, it is obvious the grounds of appeal were never determined. We, therefore cannot embark on determining the 3r d - 10th grounds of appeal which were not dealt with by the High Court. It is noteworthy, to point out that the settled law dictates that an incompetent matter should be struck out rather than being dismissed, since dismissal presupposes a determination on the merits. This principle was established in Ngoni-Matengo Cooperative Marketing Union Ltd v. Alimamohamed Osman [1959] 1 EA 577. Applying that 9

precedent, the High Court's dismissal order was misconceived; the proper course was to strike out the matter. Having discussed at lengthy our position, we are convinced that the appeal before us is without merits and is accordingly, dismissed, with no order as to costs this being a labour matter. DATED at ARUSHA this 28th day of April, 2026. P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL Judgment delivered this 29th day of April, 2026 via teleconferencing in the presence of the appellant and Mr. Valentine Nyalu, learned counsel for the respondent and Mr. Nelson Novati, Court Clerk in person is hereby certified as a true copy of the original.