NMB Bank PLC vs Emmanuel David Allute (Civil Appeal No. 619 of 2024) [2026] TZCA 444 (28 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ( CORAM: LILA. J.A.. MASOUD. 3.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 619 OF 2024 NMB BANK PLC........................................................................ APPELLANT VERSUS EMMANUEL DAVID ALLUTE.................................................... RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, at Shinyanga) ( Mwakahesva. J.1 dated the 7th day of June, 2024 in Labour Revision Application No. 17 of 2023 JUDGMENT OF THE COURT 21st & 2$hApril, 2026 MLACHA, J.A.: The respondent, Emmanuel David Allute, sent the appellant, NMB Bank PLC, at the Commission for Mediation and Arbitration (the CMA) in Labour Case No. CMA/SHY/80/2021 complaining unfair termination of his employment. He emerged the winner in an award which was handed down on 05.10.2023 ordering reinstatement and payment of arrears of salaries total TZS. 466,800,000.00. Aggrieved by the decision, the appellant accessed the jurisdiction of the High Court (Labour Division) in Labour Revision Application No. 17 of 2023 on 16.11.2023 seeking to reverse the i decision of the CMA. The revision was found to be time barred for one day and dismissed at the preliminary stage, hence the appeal now before the Court. The appeal is based on two grounds which are closely related. They carry the following complaints: One, the appeal was dismissed as being time barred but it was filed in time and; two, the High Court gave a wrong interpretation of section 61 (1) of the Interpretation of Laws Act, Cap 1 in reaching the conclusion that the appeal is time barred. The appellant was represented by Mr. Silwani Galati Mwantembe, learned advocate whereas the respondent appeared in person. On taking the floor, Mr. Mwantembe adopted the contents of his written submissions filed in terms of rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and had nothing to add. The respondent also adopted the contents of his written submissions filed in terms of rule 106 (7) and had nothing to add. Reading through the submissions of the parties, we noted that it is not disputed that the award delivered and served to the appellant on 05.10.2023 and the application for revision was filed on 16.11.2023. It is also common ground that the revision was supposed to be filed within six weeks {42 days) from the date the appellant was served with the award in terms of section 92(1) of the Employment and Labour Relations Act, Cap 366 (the ELRA). Further, the parties are in agreement that according to the interpretation given by the Court in National Bank of Commerce Ltd v. Partners Construction Ltd, CAT, Civil Appeal No. 341 of 2003 (unreported) where the statute has the words "within ...of, the first day is included in counting the days. The concern of the appellant, which is opposed by the respondent, is that our decision in National Bank of Commerce Ltd (supra) was erroneous making it necessary to depart from it. It is also her concern that the interpretation of section 61 (1) of the Interpretation of Laws Act, given by the Court and followed by the High Court was erroneous. Submitting on the first complaint, Mr. Mwantembe contended that, the interpretation given by the Court in National Bank of Commerce Ltd (supra) did not take into account the fact that, the day circle starts at midnight; that is at 00:00 hours, and runs for 24 hours up 00:000 hours of the next day. It does not start during the morning (at 6:00) as the decision tends to suggest. He argued that, if we count the date when the award was served to the appellant to be part of the 42 days, it means that time was retrospective for 6 hours something which is not logical. He urged the Court to depart from its decision and adopt an interpretation excluding the first day to remove the anomaly. This is necessarily so because the CMA business does not start at 00:00 hours but at 7:00 am and ends at 3:30 pm. 3 In reply, the respondent cited our decision in Arcopar (O. M) S. A. v. Herbert Marwa & Family Co. Ltd and Others [2015] TLR 76, where it was stated that before departing from its earlier decision, the Court must be satisfied that: "(i) in criminal cases, following the precedent case would result in an improper conviction or; (ii) it does not stand for the legal proposition for which it has been cited or; (iii) it articulates the legalproposition for which it has been cited, the proposition was obiter dicta or, the ratio decidendi is too wide or obscure or; (iv) the precedent case has been effectively overruled by a new statute or given per incuriam or; (v) the case has a built-in public policy factor or based on the customs, habits and needs o f the people prevailing at that time, and the public policy or the customs, habits and needs o f the people have since changed; (vi) the ratio decidendi o f the precedent case is in conflict with a fundamental principle o f the law; (vii) there are conflicting decisions o f equal weight that stand for the opposite proposition." He submitted that the appellant did not make his submission in line with this decision. He went on to submit that, the complaint on calculation of hours is new for it was not raised and decided by the High Court. He urged the Court to reject it. He added that, even where it can be entertained, it is still baseless because the appellant did not show the time when the award was delivered and served to the appellant. We had time to consider the submission of the parties. The appellant appears to have abided by the requirements of rule 106 (4) of the Rules which states: "106 (4) Where the parties intend to invite the Court to depart from one o f its decisions, this shall be clearly stated in a separate paragraph o f the submissions, to which special attention shall be drawn, and the intention shall also be restated as one o f the reasons." The invitation to depart from the decision was done at page 4 of the written submission, the last paragraph. The intention and reasons were given at page 5 paragraphs 1,2, and 3 as being denial of certain hours to litigants and failure to take into account the intention of the legislature. The follow up question now is whether, the Court sitting in a panel of three justices can depart from its previous decision. Mr. Mwantembe wants us to believe that it can. With respect, we have the view that it cannot. This is rather a work of the full bench of the Court which, if properly moved, and where need arises, can depart from a previous decision of the Court. See rule 4A of the Rules which states: "Where the Chief Justice is o f the opinion that there are ground for the Court to consider its conflicting decision ; departing from its previous decision ; or that an appeal or application before the Court be heard and determined by a full bench o f the Court, he may constitute a fuii bench o f the Court o f not less than five justices for the purpose of considering whether to depart from the previous decision or resolving the conflicting decisions o f the Court or otherwise, or determining an appeal or application, as the case may be." [Emphasis supplied] See Lengawo Moisari Kitesho Lekeni Others v. Republic [2024] TZCA 1177 and First Assurance Company Limited v. Heritage Insurance Company Tanzania Limited [2025] TZCA 184 where the need for forming the full bench was emphasized where there is need to vacate an earlier decision of the Court. Further, we agree with the respondent that the question of calculation of hours ought to have been raised and decided by the High Court before it is brought before the Court. See our decisions in Dar es Salaam Water Sewerage Authority v. Didas Kameka & Others [2021] TZCA 596, 6 Rashid George Mvungi & Another v. Republic [2018] TZCA 244 and Richard Majenga v. Specioza Sylvester [2020] TZCA 227. In Richard Majenga (supra) it was stated thus: "It is a settled principle o f the law that at an appellate level the court only deals with matters that have been decided upon by the lower court. There is plethora o f authorities by this Court on this point." It is thus obvious that, the issue which was not previously raised and decided by the High Court cannot be entertained by the Court. Ground one is thus baseless and dismissed. Next is the complaint that the interpretation of section 62 (1) of the Interpretation of the Laws Act given by the High Court was erroneous. Mr. Mwantembe agreed that the High Court did not give a new interpretation of this provision other than following the guidance given by the Court in National Bank of Commerce Ltd (Supra). Nevertheless, he impressed upon us to find that, the phrase "within... c^'which was used as the basis of the decision is not in section 62 (1) (a) - (h) making the decision of the High Court erroneous. He submitted that section 61 (1) when read together with paragraph (f) makes it clear that the legislature had intended that when there is a reference of clear days, in calculating the number of days, the date when the event occurred has to be excluded. He contended that the learned Judge said that six weeks was equal to 42 days converting it to clear days which should be interpreted to mean that it excludes the date when a copy of the award was given to the appellant. In reply, the respondent submitted that, the submission of the appellant is misconceived because the Court is vested with power to interpreted the law and make its stance which later becomes a precedent which has to be followed by lower courts. That is what was done in National Bank of Commerce Ltd (supra) a decision which was properly followed by the High Court. The precedent cannot therefore be vacated without good cause. We have considered the submission of the parties in the light of the decision of the Court and the law. As it is apparent from the above, the concern of the appellant is that, the interpretation of section 62 (1) of the Interpretation of Laws Act given by the Court and followed by the High Court was erroneous and the Court is invited to depart from it and give the correct interpretation which, according to the appellant, will have the effect of excluding the first day and making the revision to be in time. Like in ground one, with respect to the learned advocate, we are unable to do that in a panel of three Judges. We have the view that any decision of the Court it can only be departed by the full bench when properly constituted and moved. The second ground is thus baseless and dismissed. 8 That said and done, the appeal is found to be devoid of merit and dismissed. As this is labour matter, we will make no order for costs. DATED at TABORA this 28th day of April, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered this 28th day of April, 2026 via virtual Court, in the presence of Mr. Silwani Galati Mwantembe, learned counsel for the Appellant, the Respondent in person and Mr. Magesa Mgeta, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL