Moses Christom Haule vs Finca Microfinance Bank Ltd (Civil Appeal No. 1394 of 2025) [2025] TZCA 1233 (3 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: GALEBA. J.A.. KAIRO. J.A. And AGATHO. J.A.’ l CIVIL APPEAL NO. 1394 OF 2025 MOSES CHRISTOM HAULE ...................................................... APPELLANT VERSUS FINCA MICROFINANCE BANK LTD ....................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Mbeya) (Tiqanga, J.) dated the 14th day of March, 2025 in Labour Revision No. 24 of 2024 JUDGMENT OF THE COURT 6th Nov & 3rd December, 2025 AGATHO, J.A.: This appeal arises from a labour dispute involving an alleged unfair termination of the appellant, Moses Christom Haule from employment by the respondent, Finca Microfinance Bank Ltd. The appellant challenges the judgment and decree of the High Court of Tanzania (Labour Division) at Mbeya in Labour Revision No. 24 of 2022, dated 14th March 2025. The appellant commenced employment with the respondent in June 2008 as a loan officer based in Dar es Salaam. Over the years, he progressed through various roles demonstrating competence that led to i

being promoted to the position of Branch Manager. In 2019, the appellant was working with the respondent as the branch manager at the respondent's Mbeya branch. In this capacity, he was responsible for overseeing branch operations, including meeting performance targets related to loan issuance, client acquisition, and overall branch productivity, as outlined in his job description. However, by 2021, concerns arose regarding the Mbeya branch's underperformance, which persisted for over a year. The appellant attributed this to factors beyond his control, such as staff shortage, his personal illness including contracting COVID-19 and undergoing three operations between January and March 2021, a bank policy restricting loan issuance beyond a 40-kilometer radius, increased interest rates, and reduced loan amounts to clients. Despite resuming work in April 2021, the branch continued to fall short of targets. In July 2021, the respondent formally raised these issues with the appellant, placing him on a Performance Improvement Plan (PIP) from October to December 2021. During this period, the appellant's supervisor conducted visits and reviews, including client assessments, yet no significant improvement was recorded. The appellant communicated some challenges via email to his superiors, however, did not formally raise 2

staff shortages or other operational constraints as barriers to performance prior to the PIP. On 17th February 2022, the respondent terminated the appellant's employment on grounds of poor performance, citing his failure to meet the required standards despite the opportunity provided. He was paid his terminal benefits according to section 44 now section 45 of the Employment and Labour Relations Act [Cap 366 R.E. 2023] which amounted to TZS. 21,475,052.14 in total, being one month's salary, leave pay, salary for worked days, severance pay, and transport fare to the place of recruitment. He was also awarded with a certificate of service. Aggrieved, the appellant lodged a complaint at the Commission for Mediation and Arbitration (CMA) in Mbeya, under Labour Dispute No. CMA/MBY/Mby/29/2022/ARB.20. After hearing evidence from both parties, the Arbitrator issued an award on 19th October 2022, ruling in favour of the respondent and finding the termination both substantively and procedurally fair, hence granted no relief to the appellant. Unamused, the appellant filed a revision application at the High Court of Tanzania (Labour Division) at Mbeya seeking to quash the CMA award. The case proceeded ex parte and by written submission as the 3

respondent entered no appearance before Ndunguru, J. The Court rendered its decision on 31s t August 2023. On 13th September 2023, the respondent filed an application to set aside the said ex parte decision, which was Labour Application No. 14 of 2023 stating that non-appearance of her advocate in the case was due to sickness. This application was granted, and the ex parte judgment was set aside prompting the application for labour revision to be placed before another Judge (Tiganga, J) who heard and determined it. In the end, the High Court found the revision application lacking merit and dismissed it. Still irked, the appellant preferred an appeal to this Court on the following grounds:

1. That, the first appellate court erred in law and facts by its failure to re-evaluate and analyse properly the record o f the trial Commission for Mediation and Arbitration (CMA) and results thereof holding that the appellant's termination from employment services was both substantially and procedura/iy fair.
2. That, the first appellate court grossly erred in law and facts for holding that the respondent had conducted investigation before

terminating the appellant from employment services while the trial CMA record does not reflect that investigation was ever conducted. In prosecuting the appeal, the appellant was represented by Mr. Gerald Clement Msegeya, learned advocate who appeared via Video Conference from Mbeya. On her side, the respondent enjoyed the services of Ms. Stella Josiah Manongi, learned advocate who was physically present in Court. At the outset and after being probed by the Court, Ms. Manongi who had initially filed in Court a notice of preliminary objection abandoned it paving way to the hearing of the appeal and its determination on merit. For the appellant, Mr. Msegeya prior to submitting on the substance of the appeal, opted to abandon the first ground of appeal following concession that, in labour disputes as per the dictates of section 58 of the Labour Institutions Act [Cap 300 R.E. 2023], the LIA, this Court deals with points of law only. What remained unresolved therefore was the second ground of appeal that the respondent had conducted investigation before terminating the appellant from employment services while the trial CMA's record does not reflect that the investigation was ever conducted. 5

With respect to the foregoing ground of appeal, it was still glaring as to whether it is indeed a point of law for which the Court can exercise its jurisdiction. We thus invited the learned advocates to address us on that before proceeding to submit on the substance of the said ground of appeal. Beginning, Mr. Msegeya submitted that the investigation issue was a point of law covered by regulation 17(1) (a) - (e) of the Employment and Labour Relations (Code of Good Practice), G.N. No. 42 of 2007. He contended that the regulation prescribes steps to be followed by the employer to terminate an employee for poor performance. He lamented that there was no investigation report. He then referred us to regulation 18(1) of the same GN dealing with investigation on reasons for unsatisfactory performance. He added that this provision is couched in mandatory terms as it used the word "shall". It was his further contention that the respondent through PW2's testimony during cross examination admitted not to have conducted any investigation. In Mr. Msegeya's view, a complaint on failure to carry out the investigation was a point of law. He concluded by inviting the Court to consider that ground as raising a point of law and allow him to argue it on substance. 6

Countering, Ms. Manongi submitted that the second ground of appeal is not a point of law and hence contravenes section 58 of the LIA. It was her submission that the High Court analysed the evidence including PW2's testimony and made a finding that the investigation was done through performance improvement plan (PIP). She went on submitting that the point of law should have been clearly shown where the High Court erred in law instead of asking the Court to look at the evidence on record. Regarding rule 18 of the GN No. 42 of 2007, she contended that it is simply stating that the employer shall investigate poor performance of an employee to identify the reasons. She underlined that there is no requirement of writing a report in that provision. Moreover, the learned advocate pointed out that the law has not prescribed a form of investigation. It was her suggestion that PIP is an investigation. She referred to us the record of appeal from pages 192 to 199 covering PIP report which contains reasons for the appellant's underperformance. Ms. Manongi rejected the contention that the respondent admitted having not conducted the investigation. She clarified that PW2 stated during cross examination that there was PIP. According to her the monthly PIPs are part of investigation. She wondered further that nowhere in the PIP had the appellant stated that he lacked support from his supervisor, staff 7

shortage or other operational constraints, instead he mentioned them in his testimony which was an afterthought. She went on clarifying that the termination of employment of ordinary employee and those in managerial positions are different. The latter are regarded to have experience and knowledge. In her view, putting the appellant on PIP was aimed for him to improve, which was generosity because rule 18 of the GN. No. 42 of 2007 exempt the employees such as the appellant who are in managerial positions. Hence, it could have been dispensed with. It was her conclusion that the point raised calls for re-evaluation of evidence. In his rejoinder, Mr. Msegeya disputed the submission that the investigation was done through PIP. It was his argument that on page 29 of the record of appeal, the respondent admitted through PW2's testimony that no investigation was done. He rejoined further on regulation 18(1) of the GN No. 42 of 2007, that it applies to all employees and that investigation must be conducted to find out reasons for poor performance. He stressed that this was a point of law. 8

Having examined the record of appeal and heard the parties' submissions, we can now determine if a complaint in the second ground of appeal as to whether the respondent had conducted investigation before terminating the appellant from employment services which is not reflected in the CMA record is a point of law to be entertained by the Court. We are firm that this is decisive point. Section 58 of the LIA stipulates the jurisdiction of the Court in entertaining appeals from the Labour Court as follows: "Anyparty to the proceedings in the Labour Court may appeal against the decision o f that court to the Court o f Appeal o f Tanzania on a point o f taw only. "[Emphasis supplied]. Guided by the above provision of the law, the Court cannot entertain factual matters when handling appeals from the Labour Court. What amounts to a point of law was succinctly elaborated in CMA-CGM Tanzania Limited v Justine Baruti [2021] TZCA 256. Nevertheless, it suffices albeit briefly restating that a point of law is the one that requires the Court to examine the law, particularly on interpretation of statutory law, legal doctrine; application of the law to the evidence on record; failure to evaluate the evidence; or a conclusion arrived by the court or

tribunal without any evidence to support it; or if the court's conclusion is so perverse, unreasonable or illegal that no reasonable court or tribunal properly applying its mind would have arrived at it. In other words, it is a point that does not require the court to re-examine the evidence on record. We subscribe to the above position of the law. And applying it to the case at hand, we observed that Mr. Msegeya on several occasions referred us to the record of appeal particularly on the evidence to support or justify the second ground of appeal, which implies that the said ground is not a point of law. Rather, it is factual. For instance, he invited us to look at page 29 of the record of appeal where PW1 allegedly admitted that no investigation was conducted, but PIP was undertaken. Without beating around the bush, this confirms that the second ground of appeal is not a point of law. We hold that there is no need to belabour on the matter. We thus conclude that the second ground of appeal is a factual issue requiring the Court to re-evaluate the evidence on record which is contrary to section 58 of the LIA as well as the decision of the Court in CMA-CGM Tanzania Limited (supra); and Impala Warehouse & Logistics (T) Ltd v Samwel Kayombo and 3 Others [2025] TZCA 948. Admittedly, there is a plethora of authorities on the matter, which 10

we think will be superfluous to cite them here. Thus, we refrain from entertaining the ground of appeal for want of jurisdiction. For the foregoing reasons, we find the appeal to be incompetent for containing no ground that this Court has jurisdiction to entertain. Consequently, we strike it out. Being a labour dispute, we make no order as to costs. DATED at DODOMA this 25th day of November 2025. Z. N. GALEBA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 3r d day of December, 2025 in the presence of Mr. Gerald Msegeya, learned counsel for the Appellant, Ms. Leah Kabuje, learned counsel for the Respondent via virtual Court; and Janekissa Bukuku, Court Clerk, is hereby certified as true copy of the original. li