Samson Rwechungura Fulgence vs Geita Gold Mining Limited (Civil Appeal No. 678 of 2025) [2026] TZCA 441 (27 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWANDAMBO, J.A., KENTE. J.A. And MGONYA. J.A.^ CIVIL APPEAL NO. 678 OF 2025 SAMSON RWECHUNGURA FULGENCE ......................................... APPELLANT VERSUS GEITA GOLD MINING LIM ITED ............................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Ismail, J.) dated the 12th day of July, 2021 in Consolidated Labour Revision Nos. 68 & 69 of 2020 JUDGMENT OF THE COURT 21st & 27th April, 2026 MGONYA, J.A.: The appeal before us arises from the decision of the High Court in Consolidated Labour Revision Applications Nos. 68 and 69 of 2020, wherein the court revised the award of the Commission for Mediation and Arbitration (the CMA) dated 28th July, 2020. From the record, the material facts may be stated thus: the appellant was employed by the respondent on 2n d November 2015. That employment relationship subsisted until 19th November, 2018, when the respondent terminated the appellant's services on allegations of gross misconduct. The accusations leveled against him included breach i

of trust in the performance of his duties, abuse of office for personal gain, misappropriation and misuse of the respondent's property, breach of confidentiality obligations, and other serious contraventions of the respondent's internal rules and policies. Following a disciplinary hearing, the Disciplinary Committee found the charges proved, whereupon the appellant's employment was terminated, and he was paid his terminal benefits. Aggrieved by that decision, and maintaining that the termination was unfair, the appellant referred the dispute to the CMA. His complaint centered on alleged unfair termination, which, in his view, infringed his right to work. Efforts at mediation proved abortive, and the matter proceeded to arbitration where both parties were accorded an opportunity to be heard. Upon conclusion of the proceedings, the CMA found in favor of the appellant, holding that the termination was unfair and ordered his reinstatement. The said award did not satisfy either party. Consequently, both the appellant and the respondent lodged Revision Applications Nos. 68 and 69 of 2020 before the High Court respectively. Upon hearing the parties, the High Court concurred with the CMA that the termination was unfair. However, it interfered with the relief granted, setting aside 2

the order for reinstatement and substituting it with an award of compensation equivalent to twelve months' remuneration. The learned Judge was of the considered view that reinstatement was inappropriate in the circumstance, given that the employment relationship between the parties had been irreparably strained during the course of the dispute. Dissatisfied with that revision, the appellant has preferred the present appeal on three grounds, which, for reasons that will become apparent in the course of this judgment, we find it unnecessary to reproduce herein. At the hearing, Mr. Kassim Gilla, learned counsel, appeared for the appellant, while Mr. Kyariga N. Kyariga, also learned counsel, represented the respondent. Before the commencement of the substantive hearing, Mr. Gilla sought leave of the Court to raise a preliminary issue touching on procedural irregularities in the CMA proceedings. He submitted that the proceedings were vitiated by non- compliance with Regulation 25(1) of the Labour Institutions (Mediation and Arbitration Guidelines), Government Notice No. 67 of 2007 (herein referred to as the Government Notice No. 67 of 2007), in that the witnesses who testified before the CMA were neither sworn nor

affirmed prior to giving their evidence. He further impugned the manner in which exhibits were admitted. Referring us to pages 244 et seq. of the record of appeal, the learned counsel contended that the proceedings from that point onwards were a nullity. He accordingly urged the Court, pursuant to section 6(2) of the Appellate Jurisdiction Act, (the AJA), to quash the impugned proceedings and remit the matter to the CMA for a hearing de novo. For his part, Mr. Kyariga associated himself with the submissions advanced by learned counsel for the appellant and supported the prayer sought. In doing so, he placed reliance on this Court's decision in Geita Gold Mining Ltd v. Damian Butage (Civil Appeal No. 467 of 2021) [2024] TZCA 754, in which, under comparable circumstances, the Court declared the proceedings a nullity and ordered a retrial. As correctly submitted by Mr. Gilla, the law, as stipulated under Rule 19(2) read together with Rule 25(1) of the Government Notice No. 67 of 2007, imposes a mandatory duty upon an arbitrator to administer an oath or affirmation prior to recording evidence of witnesses. This legal position has been authoritatively expounded by this Court in Bulyanhulu Gold Mines Limited v. Keneth Robert Fourie (Civil Appeal No. 105 of 2021) [2022] TZCA 460, where it was categorically

held that, the combined effect of Rule 25(1) of Government Notice No. 67 of 2007 and section 4(a) of the Oaths and Statutory Declarations Act leaves no room for discretion. The arbitrator is under an inescapable obligation to administer an oath or affirmation in terms of Rule 19(2) of the same Rules. Compliance with this requirement is not a mere procedural formality; rather, it is fundamental, as it ensures the competence, reliability, credibility, and authenticity of the evidence so received. See also Unilever Tea Tanzania Limited v. Davis Paul Chaula (Civil Appeal No. 290 of 2019) [2021] TZCA 760 and Unilever Tea Tanzania Limited v. Godfrey Oyema (Civil Application No. 416 of 2020) [2022] TZCA 151. We have carefully perused the record of appeal, in particular at pages 244, 255, 263, and 273. It is manifest that the arbitrator proceeded to record the evidence of witnesses from both sides without administering an oath or receiving an affirmation. In our considered view, such omission is not a trivial irregularity; rather, it goes to the root of the proceedings. The consequence is that the entire evidentiary foundation is vitiated, rendering the proceedings a nullity. We are fortified in this conclusion by the holding in Bulyanhulu Gold Mines Limited v. Keneth Robert Fourie (supra) where this Court

unequivocally stated that, evidence taken without prior administration of an oath or affirmation is devoid of any probative value and cannot be sustained on record. A similar position was reiterated in Onael Moses Mpeku v. National Bank of Commerce Limited (Civil Appeal No. 274 of 2020) [2023] TZCA 17406, where the Court stated that: "This Court has repeatedly emphasized the need for every witness who is competent to take an oath or affirmation before the reception o f his or her evidence in the trial court, including the CMA. I f such evidence is received without oath or affirmation ; it amounts to no evidence in law, and thus it becomes invalid and vitiates the proceedings as it prejudices the parties' case." In the light of the foregoing irregularity, and bearing in mind the settled legal position, we are persuaded to accede to the invitation by the learned counsel to invoke the revisional powers of this Court under section 6(2) of the ADA. Accordingly, we hereby quash and set aside the proceedings and award of the CMA, as well as the proceedings and judgment of the High Court, on the ground that they are founded on a nullity. We further direct that the matter be remitted to the CMA for 6

hearing and determination de novo before a different arbitrator, in strict compliance with the law. We make no order as to costs. DATED at MWANZA this 24th day of April, 2026. L. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 27th day of April, 2026 in the presence of Mr. Kassim Gilla, learned counsel for the Appellant, Mr. Kyariga N. Kyariga, learned counsel for the Respondent who appeared virtually and Ms. Harida Hamisi, Court Clerk, is hereby certified as a true copy of the original. A. L. KALEGEYA Ni: DEPUTY REGISTRAR COURT OF APPEAL 7