NMB Bank PLC vs Mkande Zawadi Mbwambo (Civil Appeal No. 217 of 2023) [2025] TZCA 1206 (21 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE. J.A. MAIGE, J.A. And KHAMIS. J.A .^ 1 CIVIL APPEAL NO. 217 OF 2023 NMB BANK PLC ...................................................... ............. ...... APPELLANT VERSUS MKANDE ZAWADI MBWAMBO ............................... ..... RESPONDENT (Appeal from the decision of the High Court of Tanzania, (Labour Division) at Dar es Salaam) (Mteule. J.1 ) dated the 6th day of February, 2023 in Labour Revision No. 238 of 2022 JUDGMENT OF THE COURT 6th & 21st November, 2025 KHAMIS. J.A.: At the heart of this appeal is the validity of an order for the withdrawal of a Labour Dispute No. CMA/DSM/ILA/148/2022 given by the Commission for Mediation and Arbitration of Dar es Salaam (the CMA) on 31st May, 2022. It is a common fact that the respondent's employment with the appellant ended after their relationship turned sour in March, 2022. On 17th March, 2022, the respondent lodged a dispute in the CMA alleging constructive termination on the ground that, he was subjected to an intolerable and severe working environment. He sought compensation for unfair termination to the tune of T7S 120,000,000.00 which is equivalent to 25 months' remuneration. In the course of mediation, the respondent sought leave of the mediator to withdraw the dispute on the ground that, he was no longer interested to pursue it. The prayer for the withdrawal of the dispute was strongly resisted to by the appellant's counsel, Mr. Antipas Lukamu, who contended that, he had lodged a notice of preliminary objection challenging the competency of the dispute. Upon considering the parties' rival submissions, the CMA (Mwangata Makawa, Mediator) delivered a ruling granting the prayer for the withdrawal of the dispute and overruling the objection raised. He reasoned that, the prayer for the withdrawal was made prior to the filing of the notice of preliminary objection and therefore, it was in the interest of justice to grant it. Aggrieved by the ruling of the CMA, the appellant preferred Labour Revision No. 238 of 2022 to the High Court, Labour Division (the High Court) for an order to call the records of the CMA and examine the proceedings and the order made therein with a view of satisfying itself as to the legality, propriety, rationality and correctness. The application for revision was made by chamber summons supported by an affidavit affirmed by one Sharifa Karanda, a principal officer of the appellant who deposed that, the CMA sustained a preliminary objectionfronted by the appellant but erroneouslystruck out the dispute, instead of dismissing it. The High Court wasinvitedto decide on whether the mediator was justified to strike out the dispute instead of dismissing it. In a counter affidavit sworn by the respondent, she differed with Ms. Sharifa Karanda and highlighted what actually transpired at the CMA leading to the contested order for the withdrawal of the dispute, thus: "5. That on the m aterial date (2nd May, 2022), the m atter was fixed fo r m ediation interparties. However, the com plainant raised an issue o f not intending to pursue further the m ediation and prayed fo r withdrawal o f the m atter. Ultim ately, the respondent opposed the com plainant's prayers with the reason that they have a prelim inary objection on tim e lim itation and was intending to pursue a t the hearing. 6. That the m ediator could not proceed to determ ine anything placed before him after the com plainant's prayers given the fact that, the com plainant respondent had already m oved the 3 com m ission on his intention not to continue with the m atter, hence prayed to withdraw h is dispute. 7. That on 2nd M ay2022 a t 08.00am when the dispute came fo r m ediation, there was no prelim inary objection in place when the respondent herein (com plainant) prayed fo r an order to withdraw h is dispute. The only prevailing schedule when the parties appeared before the com m ission was m ediation inter parties. 8. However, the com plainant was duly served with copy o f the prelim inary objection by the applicant (NMB) that was file d a t the com m ission later the same day i. e 2nd May, 2022 after the m ediator determ ined the hearing fo r the prayer o f withdrawal as in itiated by the com plainant. 13. That the only rem edy available was to strike out the dispute as prayed by the com plainant since by the tim e the parties appeared fo r m ediation there was no inform ation provided by the respondent (NMB) and the m ediator had no knowledge regarding the existence o f a prelim inary objection, only to fin d that, it was a surprise for both the CMA and the opposing side (com plainant)." Upon hearing the parties, the High Court (Mteule, J) was convinced that, the mediator was right to grant the prayer for withdrawal of the dispute and on that basis, upheld the CMA decision and dismissed the application for revision. Resentfui of the High Court finding, the appellant approached this temple of justice faulting the learned Judge on three grounds, namely: one, holding that the CMA was right to allow the withdrawal of the dispute which was filed out of time; two, holding that the appellant will have an avenue of raising the issue of time limitation when the respondent refiles the dispute; and three, upholding the CMA decision which circumvented the preliminary objection raised by the appellant on competency of the dispute. At the hearing of this appeal, the appellant was represented by Mr. Paschal Kamala, learned advocate, while the respondent enjoyed the services of Mr. Patrick Mhina, also learned advocate. Both counsel filed written submissions in line with rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and exercised their right to highlights as per rule 106 (10) (a) of the Rules. Invited to address the Court, Mr. Kamala adopted the written submissions. However, he abandoned the third ground of appeal and consolidated the remaining two grounds. On the consolidated first and second grounds of appeal, Mr. Kamala submitted that, the learned Judge erred in law in upholding the CMA decision allowing the withdrawal of the dispute which on the face of it, was time barred. He referred us to the CMA Form No. 1 showing that the dispute arose on 27th January, 2020 but the action was filed on 18th March, 2022. He argued that, the dispute was time barred as it ought to be filed within 60 days in terms of rule 10 (2) of the Labour Institutions (Mediation and Arbitration) Rules, 2007 G.N No. 64 of 2007. He submitted that, instead of granting the prayer for the withdrawal of the dispute, the mediator was required to strike it out. The learned counsel cited the case of Barclays Bank Tanzania Limited v. Phylisiah Hussein Mcheni, Civil Appeal No. 19 of 2016 (unreported) for the proposition that, it is improper to allow a party to an employment contract to disregard time in instituting a complaint against the other party. The learned counsel further placed reliance on the case of Hodi (Hotel Management) Company Ltd v. Yohana Ladislaus Malima 6 & 211 Others, High Court Labour Revision No. 48 of 2021 (unreported) for the proposition that, it is wrong for the arbitrator to strike out the application found to be time barred instead of dismissing it. Mr. Kamala implored us to go along our decision in the case of Meet Singh Bhachu v. Gurmit Singh Bhachu, Civil Application No. 144/02 of 2018 where it was held that, one cannot withdraw an incompetent appeal or application. Citing the case of Standard Chartered Bank, Standard Chartered Bank (Hong Kong) Ltd v. VIP Engineering & Marketing Limited and 4 Others, Civil Application No. 222 of 2016 (unreported), the learned counsel submitted that, where a party raised a preliminary objection in a case, the other party could not be allowed to rectify the defects complained of by the party who raised the objection. He contended that, allowing a party to withdrawal an incompetent dispute amounted to pre-empting the objection raised and it prejudiced the appellant. On his part, the respondent's counsel, in opposing the appeal, adopted the written submissions earlier on filed, accentuated the background of the dispute and substantively differed with the learned counsel for the appellant. He submitted that, the High Court was justified to uphold the CMA decision which granted leave to the respondent to withdraw of the dispute. Mr. Mhina cited Order XXIII Rule 1 (1) of the Civil Procedure Code (the CPC) for the assertion that, when the respondent prayed for leave to withdraw the dispute, there was no pending legal issue before the mediator to stop him from granting the application. He submitted that, a fair determination of the disputed issue would require to resolve what started first, between a prayer for withdrawal of the dispute or the filing of a notice of preliminary objection on competency of the dispute. The learned counsel for the respondent submitted that, the cases relied upon by the appellant's counsel were distinguishable from the circumstances of this appeal and urged us to place no weight on them. He maintained that a question of dismissal or striking out of the dispute does not arise in this case as the CMA properly allowed the respondent to withdraw the dispute before the notice of preliminary objection was filed by the appellant and brought to the attention of the mediator. Mr. Mhina referred us to pages 31 and 32 of the record of appeal where the respondent deposed that, when the dispute was set for mediation on 2n d May, 2022 at 8.00 am, there was no pending preliminary objection lodged by the appellant. He also referred us to 8 paragraph 8 of the respondent's counter affidavit for the fact that, the notice of preliminary objection was subsequently lodged and served on the respondent after the mediator had closed the proceedings for the day. On rejoinder, Mr. Kamala referred us to page 8 of the record and contended that, the notice of preliminary objection was on record when the respondent was seeking leave of the CMA to withdraw the dispute. On that basis, he prayed that the appeal be allowed and judgment of the High Court be quashed. This appeal is governed by section 57 of the Labour Institutions Act, (the LLA) which provides that any party to the proceedings in the High Court, Labour Division may appeal against that decision to this Court on point of law only. We are also conscious that, the CMA and the High Court made concurrent findings on the fate of the respondent's application to withdraw the dispute at the CMA. Therefore, this being a second appellate court, it should be reluctant to interfere with the concurrent findings of the two courts below unless it is clearly shown that there has been a misapprehension of evidence, a miscarriage of justice or violation of some principle of law or procedure (See the case of Amratlal Damodar Maltaser & Another t/a Zanzibar silk Stores v. A.H. Jariwalla t/a Zanzibar Hotel [1980] T. L. R 86. We have considered the record and the memorandum of this appeal. We have also reflected on the parties' submissions in the High Court and in this appeal. The issue that commends itself for determination in this appeal is whether the CMA erred to allow the respondent's application to withdraw the dispute. In resolving the issue, we propose to start with rule 15 of the Labour Institutions (Mediation and Arbitration) Rules, G.N No. 64/2007 which provides that: "15. Where it appears during m ediation proceedings that a ju risd iction al issue relating to m ediation has not been d e te rm in e d th e m ediator sh aii require the referring party to prove that the Commission has the jurisdiction to m ediate the dispute." The above provision provides that, where there is a pending issue on the jurisdiction of the CMA, the mediator is enjoined to ascertain such issue before attempting the mediation or making any other relevant order. Jurisdiction is the legal authority given to a court of law or tribunal to hear and determine cases within a specific geographic area or over 10 particular types of cases. This legal authority is defined by factors such as geography, nature of the legal issues and statutory or constitutional requirements. Jurisdiction may also depend on time limit within which a dispute can be initiated. The expiration of a period within which a party may sue can directly impact a court's authority to hear a case, and therefore a jurisdictional bar. It is on record that, when the respondent's dispute was set for mediation at the CMA on 2n d May, 2022, the respondent sought leave to withdraw the same but the prayer was resisted to by the learned counsel for the appellant. The said counsel contended that, the appellant had lodged a notice of preliminary objection on time limitation and it was pending for determination. On the other hand, the respondent maintained that, there was no such notice on record of the CMA or served on him. Upon hearing the parties, the mediator adjourned the matter for delivery of the ruling until on 31st March, 2022. In the said ruling, the appellant's objection to the prayer for withdrawal of the dispute was overruled while the respondent was granted leave to withdraw the dispute. It was reasoned by the mediator that, the prayer for withdrawal of the dispute was made earlier than the lodging of a notice of ii preliminary objection. It was that finding of the mediator which was challenged by the appellant by way of revision to the High Court and subsequently, in this appeal. It should be noted that the mediation proceedings at the CMA were not recorded. It is therefore impossible to examine the parties' submissions on the issues in contest at the CMA. In its decision, the High Court re-examined the available CMA record and found that the prayer for withdrawal of the application was made earlier than the filing of the notice of preliminary objection by the appellant. We noted that in the impugned decision of the CMA, the mediator recorded that, when the prayer for withdrawal of the dispute was made by the learned counsel for the respondent, the appellant's counsel resisted it on the ground that, a notice of preliminary objection had been lodged. Upon analysis of the counsel rival arguments, the mediator concluded that, the prayer for withdrawal of the dispute had preceded the filing of a notice of preliminary objection. We also noted that, the appellant's affidavit in support of the chamber summons filed in respect of the application for revision in the High Court was sketchy and lacked necessary details to shed light on what actually transpired at the CMA. On the contrary, the respondent's 12 counter affidavit was elaborate and detailed the series of events which took place at the CMA on the day when the prayer for withdrawal of the dispute was made. The respondent averred that, when the matter was called on for mediation on the material day at 8,00 am, there was no notice of preliminary objection lodged by the appellant. He averred that, the said notice was served on him after the matter had been adjourned and a date of the ruling was fixed. The averment was corroborated by a copy of the notice of preliminary objection presented for filing at the CMA on 2n d May, 2022 and served on the respondent on the same date at 08:29 am, For the reasons stated, we are satisfied that the notice of preliminary objection was lodged at the CMA and served on the respondent after conclusion of the mediation proceedings on 2n d May, 2022. That being the case, the appellant's allegation that the prayer for withdrawal of the dispute circumvented the preliminary objection raised was baseless as there was no such preliminary objection on record when the respondent sought leave to withdraw the dispute. Thus, we find no fault in the decision of the High Court which upheld the mediator's 13 decision to grant the respondent's prayer for withdrawal of the dispute against the appellant. In the result, we find no merits in this appeal and the same is hereby dismissed it in its entirety. This being a labour matter, we make no order as to costs. DATED at DODOMA this 18th day of November, 2025. R. K. MKUYE JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 21st day of November, 2025 in the presence of Ms. Herieth Lwitiko Kaboneka, learned counsel for the Appellant, Mr. Patrick Mhina, learned counsel for the Respondent through Video link at Dar es Salaam and Ladislaus Msuba, Court Clerk; is hereby certified as a true copy of the original. 14