Stephen S. Mnubi & Another vs International School of Tanganyika (Civil Appeal No. 2083 of 2025) [2026] TZCA 435 (23 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: KEREFU. 3.A.. MWAMPASHI, J.A. And ISMAIL, J.A.) CIVIL APPEAL NO. 2083 OF 2025 STEPHEN S. MNUBI...................... . ............................................ 1ST APPELLANT PRISCA A. MKINI ...................................... . ............................... 2N D APPELLANT VERSUS INTERNATIONAL SCHOOL OF TANGANYIKA............................RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mruke, 3.1 ) dated the 20thday of August, 2021 in Labour Revision No. 913 of 2019 JUDGMENT OF THE COURT 17th & 23rd April, 2026 KEREFU, J.A.: The appellants, Stephen S. Mnubi and Prisca Mkini appeal against the decision of the High Court of Tanzania, Labour Division dated 20th August, 2021 in Labour Revision No. 913 of 2019, in which the respondent successfully challenged the award issued by the Commission for Mediation and Arbitration at Dar es Salaam (the CMA) on 1st November, 2019, in Labour Dispute No. CMA/DSM/KIN/864/18/258 (the labour dispute). In order to appreciate the context in which the labour dispute arose and later this appeal, we find it apposite to briefly provide the material facts of the matter as obtained from the record of appeal. It goes thus; the appellants were employed by the respondent as Teacher Assistants from 2008. Initially, their employment relationship was characterized by successive renewals until 1st August, 2017 when the parties entered into a fixed terms contracts for one year, effectively from 1st August, 2017 to 31st July, 2018 at a monthly salary of USD 782 and 751, respectively. As the respondent did not intend to proceed with the appellants, at the end of the said contracts, it issued three months' notice requesting them to leave their employment at the expiration of the contract. The appellants contended that, upon expiry of the said contracts on 31st July, 2018, they continued working until 6th August, 2018, when their employment contracts were verbally and unfairly terminated. Dissatisfied, and convinced that the termination of their employment contracts was unfair both, substantively and procedurally, the appellants approached the CMA, where they contested the termination and challenged the procedures adopted by their employer to end their employment contracts. They thus prayed for payment of USD 24,056.30 being compensation for unfair termination, notice, leave and severance allowances. The appellants' claims were challenged by the respondent who contended that, the appellants7 employment contracts ended on 31st July, 2018. That, upon expiry of the said contracts, the appellants did not continue working for the respondent. That, prior to the expiry date of the said contracts, the appellants were made aware that the respondent was not intending to renew their contracts. As the process of mediation failed, the dispute was placed before the arbitrator who heard evidence from both parties and, in the end, found that the termination of the appellants' employment contracts was unfair. As such, the CMA pronounced award in favour of the appellants and ordered the respondent to pay them a total sum of USD 24,056.3 being twelve (12) months' salary, one month's salary as notice, leave and severance allowances. Aggrieved, the respondent, lodged a Labour Revision No. 913 of 2019 in the High Court challenging the CMA award. Having heard the parties, the learned High Court Judge found that, the appellants were not terminated but, their employment contracts came to an end and thus not entitled to the reliefs awarded by the CMA. Thus, the learned High Court Judge allowed the revision, quashed and set aside the CMA award. The decision of the High Court prompted the appellants to lodge the current appeal to express their dissatisfaction. The appeal comprised of five (5) grounds of complaint. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this judgment, to reproduce them herein. It is noteworthy that, upon being served with the appellants' written submission, the learned counsel for the respondent lodged a reply written submission, where he raised a preliminary objection comprised of two points challenging the competence of the appellants' appeal to the effect that: (i) the CMA Kinondoni office did not have the requisite territorial jurisdiction to entertain the appellants' labour dispute; and (ii) the first appellant did not have locus standi to represent the second appellant, as she did not sign the CMA Form No. 1 that instituted the labour dispute at the CMA. At the hearing of the appeal before us, the appellants had the legal services of Messrs. Bernard Mbakileki and Victor Ntalula, learned counsel who entered appearance virtually together with the appellants. On the other side, the respondent was represented by Mr. Emmanuel Nasson, learned counsel. At the outset, and being guided by the established practice that, when there is a point of objection, the same has to be determined first, we outrightly invited the learned counsel for the parties to address us on the two points of objection raised by the respondent. Submitting in support of the first point, Mr. Nasson argued that, the CMA Kinondoni office had no jurisdiction to mediate and arbitrate the Labour Dispute lodged by the first appellant. To clarify his argument, he referred us to page 6 of the record of appeal where the CMA Form No. 1 filed by the first appellant before the CMA at Kinondoni office clearly indicated that the cause of action arose at Kinondoni and Ilala Districts in Dar es Salaam. That, despite the said indication that the cause of action originated from the two different districts, Kinondoni and Ilala, the CMA Kinondoni office improperly, and without territorial jurisdiction, proceeded to entertain the matter. He contended that, the said dispute was filed contrary to rule 22 (1) of the Labour Institutions (Mediation and Arbitration) Rules, GN. 64 of 2007 (the GN 64 of 2007). That, in terms of the said provision, each CMA's office has exclusive jurisdiction to entertain a labour dispute which arose within its geographical area or as otherwise directed by the Commission. It was his argument that, since, in this appeal, there was no evidence in the record suggesting that the Commission had issued a directive to that effect, the CMA Kinondoni office had no territorial jurisdiction to mediate and arbitrate the labour dispute which originated outside of its territorial boundaries. To support his proposition, he cited the cases of CRDB Bank PLC v. Lusekelo Mwakapala, Civil Appeal No. 143 of 2021 [2023] TZCA 17637 and Jambo Plastics Ltd v. Leornard Mhilu & 178 Others, Civil Appeal No. 349 of 2022 [2025] TZCA 678. He then urged us to find that the entire proceedings before the CMA Kinondoni office are a nullity as it lacked the territorial jurisdiction required by the law. That, the proceedings before the High Court, its decision and subsequent orders were also nullity as they emanated from nullity proceedings. On the second point, Mr. Nasson also faulted the CMA to have proceeded to entertain the matter as a representative suit, while the CMA Form No. 1 was filed contrary to rule 5 (2) and (3) of the GN. No. 64 of 2007. He clarified that, the CMA Form No. 1 which was used by the first appellant to institute the labour dispute at the CMA, did not disclose who was that other party who was being represented, as it only indicated that the said labour dispute was instituted by the first appellant and ' another' person without disclosing the name of that ' another1 complainant who also did not sign the said referral document. To amplify on this point, Mr. Nasson argued that, pursuant to rule 5 (2) and (3) of the GN, No. 64 of 2007, for a labour dispute to be considered as a representative suit, there are two conditions that must be met; one, that, the CMA Form No. 1, that instituted a labour dispute must be signed by the other employees filing the said dispute and authorizing a representative to act on their behalf; and two, a signed list of all complainants giving that mandate, must be attached to that referral document. He thus insisted that, since in this appeal, the two mandatory conditions were not complied with, as the second appellant was not disclosed and never signed the CMA Form No. 1, it was improper for the CMA Kinondoni office to hear and determine the said matter as a representative labour dispute. That, the first appellant did not have a locus standi to represent the second appellant. To bolster his argument, he cited the cases of Jambo Plastics Ltd (supra) and Lwawire Robert Katula & 36 Others v. National Insurance Corporation of Tanzania & Another, Civil Appeal No. 524 of 2022, [2024] TZCA 389 and emphasized that, the said irregularity had rendered the proceedings before the CMA as well as those in the High Cout a nullity. Based on his submission, he beseeched us to invoke the powers of revision bestowed upon the Court under section 6 (2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (the AJA) to nullify the aforesaid proceedings. In his response, although, Mr. Mbakileki conceded to the pointed irregularities in the CMA Form No. 1, he strongly challenged the submission made by his learned friend and blamed him for raising the said legal points at this stage of an appeal. Starting with the first point of objection, Mr. Mbakileki argued that, the complaint before the CMA was filed under rule 22 (1) of the GN 64 of 2007 and section 21 of the Civil Procedure Code, Chapter 33 of the Revised Laws (the CPC), which allows the suit to be instituted where the respondent resides and conduct business. He thus urged us to find that, since, the respondent's office was permanently located at Kinondoni District where it was carrying its business, the CMA Kinondoni office had the requisite territorial jurisdiction to mediate and arbitrate the labour dispute filed by the appellants. On the second point, Mr. Mbakileki referred us to the Order issued by this Court on 14th August, 2024, in which the appellants were granted leave to amend the notice of appeal, memorandum of appeal and the relevant parts of the record of appeal to indicate the name of the second appellant. Upon being prompted as to whether the CMA Form No. 1 was also amended and signed by the second appellant, Mr. Mbakileki, although, admitted that it was not, he maintained that the complaint before the CMA was properly filed. In addition, and upon further reflection, Mr. Mbakileki urged us to invoke the principle of overriding objective and find that the complaint before the CMA was properly filed by the appellants. On that basis, Mr. Mbakileki urged us to overrule the preliminary objection raised by the respondent and proceed to hear the appeal on its merit. In his brief rejoinder, Mr. Nasson challenged the submission made by his learned friend by relying on the principle of overriding objective. He insisted that the said principle cannot be applied in the circumstances of this appeal. He, thus, reiterated what he submitted earlier. Having carefully considered the rival arguments by the learned counsel for the parties, the main issues for our determination is (i) whether the CMA Kinondoni office had territorial jurisdiction to arbitrate and determine the matter; and (ii) whether the application was properly filed at the CMA. Starting with the first point, it is a common ground that jurisdiction of courts is a creature of statute and is conferred upon and prescribed by the law and not otherwise. The term "Jurisdiction" is defined in Halsbury's Laws of England, Vol. 10, paragraph 314 to mean: - "...the authority which a court has to decide m atters that are litigated before it or to take cognizance o f matters prescribed in a format way for its decision. The lim its o f th is a u th o rity a re im p o se d b y the sta tu te ; ch a rte r o r co m m issio n u n d e r w hich th e co u rt is co n stitu te d , a n d m ay be exten d e d o r re stra in e d b y s im ila r m eans. A lim itation may be either as to the kind and nature o f the claim ; or as to the area which jurisdiction extended or it may partake o f both these characteristics." [Emphasis added]. This Court, in several occasions, has pronounced itself on this position. Specifically, in Isihaka Mzee Mwinchande v. Hadija Isihaka, Civil Appeal No. 99 of 2010 (unreported), the Court stated that: "The term jurisdiction connotes the lim its which are im posed by statute upon the power o f a validly constituted court to hear and determine issues between parties seeking to avail themselves o f its process..." From the above extracts and considering the fact that jurisdiction of courts/tribunals is conferred upon and prescribed by law, it is therefore a primary duty of every court/tribunal, before venturing into a 10 determination of any matter before it, to first satisfy itself that it is vested with the requisite jurisdiction to do so. In the matter at hand, it is on record that the complaint instituted by the first appellant at the CMA Kinondoni office was a labour dispute. The territorial jurisdiction of the CMA to arbitrate and determine a labour dispute is governed by rule 22 (1) of the G.N. No. 64 of 2007 which clearly provides that: "A dispute shall be mediated or arbitrated by the Commission a t its office having responsibility for the area in which the cause o f action arose, unless the Commission directs otherwise" In terms of the above provision, it is clear to us that, every CMA office has jurisdiction to adjudicate the labour dispute which arose within its geographical area or as otherwise directed by the Commission. The modality on how such jurisdiction will be ascertained, is provided under section 87 (1) of the Employment and Labour Relations Act, Cap 366 of the Revised Laws (the ELRA) read together with rule 12 (1) of G.N. No. 64 of 2007 which require a party submitting a complaint before the CMA to fill CMA Form No. 1, provided under the Employment and Labour Relations (General) Regulations, 2017 (GN. No. 47 of 2017) (the Regulations), specifying particulars of the dispute, including where the cause of action arose. See our previous decisions in the cases of Tatu Mgetta & Another v. Mwanza Sattelite Cable TV, Civil Appeal No. 142 of 2019 [2022] TZCA 779 and Elia Kasalile & 20 Others v. The Institute of Social Work, Civil Appeal No. 145 of 2016 [2018] TZCA 364. In the instant appeal, as correctly argued by Mr. Nasson, the CMA Form No. 1 filed by the first appellant, clearly indicated that the cause of action arose at Kinondoni and Ilala Districts in Dar es Salaam City. However, despite being alerted at the earliest stages that the cause of action for one of the complainants arose at a different district i.e Ilala District, the CMA Kinondoni office proceeded to entertain the matter without having the requisite territorial jurisdiction to do so. We are mindful that, in his submission, Mr. Mbakileki, among others, referred us to section 21 of the CPC and urged us to invoke the principle of overriding objective and overrule the preliminary objection raised by the respondent. With profound respect, we are unable to agree with him on this aspect. We equally find his submission to be a misconception of law. As clearly indicated above, matters of filing of a labour dispute before the CMA are governed by section 87 (1) of the ELRA read together with rules 12 (1) (2) (3), 21 (1) and 22 (1) of the G.N. No. 64 of 2007. Therefore, section 21 of the CPC, is not applicable 12 in the circumstances of this appeal. It is also evident that, though, in his oral submission Mr. Mbakileki alleged that the CMA Form No. 1 was properly filed at the CMA Kinondoni office where the respondent resides and conduct its business, in his written submission, at page 2, 3rd paragraph, he clearly indicated that: "...on W h August, 2018, the a p p e lla n ts file d Lab o u r D isp u te No. C M A /D S M /K IN /8 6 4 /1 8 /2 5 8 in the Hon. C om m ission fo r M e d ia tio n a n d A rb itra tio n fo r H a la , D a r e s Salaam Zone (C M A ) a g a in st the re sp o n d e n t for payment o f USD 43,985.30 being compensation for unfair term ination." [Em phasis added]. We should interpose here and observe with concern that, although, in the above paragraph contained in his written submission, Mr. Mbakileki indicated clearly that the appellants' labour dispute was filed at the CMA's Ilala office, in his oral submission before us, he completely changed his goal post by submitting contrary to what he had indicated above. It is our settled view that, in his oral submission, Mr. Mbakileki was trying to mislead the Court. In addition, and on the applicability of the principle of overriding objective, as correctly argued by Mr. Nasson, the issue of jurisdiction cannot be cured by that principle. This Court, on several occasions had categorically stated that the overriding objective principle cannot be 13 applied blindly against the mandatory provisions of the procedural law which goes to the very foundation of the case. See for instance our previous decisions in Njake Enterprises Limited (supra) and Mondorosi Village Council and 2 Others v. Tanzania Breweries Limited & 4 Others, Civil Appeal No. 66 of 2017 [2018] T7CA 303. In the case of CRDB Bank PLC v. Lusekelo Mwakapala (supra) cited to us by Mr. Nasson, when we considered an akin situation, as to whether the Ilala CMA's office had territorial jurisdiction to determine a labour dispute arose in other geographical areas, we stated that: "...the CMA Ilala had no territorial jurisdiction to determine the dispute...and since the CMA had no jurisdiction, it follows that the proceedings o f the CMA in Dispute No. RK/CMA/SMB/283/214 and those o f the High Court in Labour Revision No. 04 o f 2019 were a nullity . " Similarly, in the instant appeal, it is our settled view that, the CMA Kinondoni office erroneously assumed the jurisdiction that it did not possess to entertain the labour dispute that arose at Ilala District, as its jurisdiction is limited to Kinondoni only unless there is a proof that, the Commission directed otherwise. Moving to the second point, we are as well mindful that, Mr. Mbakileki, having conceded that the CMA Form No. 1 did not specify the name o f ' another* person and not signed by the second appellant, he referred us to the Order of this Court dated on 14th August, 2024 and urged us to find that the CMA Form No. 1 was properly filed before the CMA. Again, and with profound respect, we find the submission by Mr. Mbakileki misconceived and not supported by the record. It is evident that, the said Form was not amended and it is also not signed by the second appellant. We are increasingly of the view that, at any rate, even if the said Form could have been amended to insert the name of the second appellant thereto, it would not have managed to cloth the CMA Kinondoni office with the requisite territorial jurisdiction which is conferred and prescribed by the law. In the event, we sustain the preliminary objection raised by the respondent. Consequently, we have no option, other than to invoke the revisional powers vested in this Court under section 6 (2) of the AJA and hereby nullify the entire proceedings of the CMA and quash the resultant award. We further nullify the proceedings before the High Court in Labour Revision No. 913 of 2019, quash the decision and set aside the subsequent orders thereto as they emanated from the nullity proceedings. For the interest of justice, we direct any party who is still 15 interested to pursue the matter, to file a fresh application in accordance with the dictates of the law. Considering the circumstances of this appeal, we make no order as to costs. DATED at DODOMA this 21st day of April, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered virtually this 23rd day of April, 2026 in the presence of Mr. Bernard Mbakileki, learned advocate for the Appellants, Mr. Emmanuel Nasson, learned advocate for the Respondent and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. 16