Exim Bank Tanzania Limited vs Norbert Deogratias Missana (Civil Appeal No. 44 of 2024) [2025] TZCA 1190 (14 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWANDAMBO, J.A.. MGONYA. 3.A. And FELESHI. J.A.1 CIVIL APPEAL NO. 44 OF 2024 EXIM BANK TANZANIA LIMITED.................................................APPELLANT VERSUS NORBERT DEOGRATIAS MISSANA..........................................RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mlvambina. 3.^ dated the 9th day of November, 2023 in Labour Revision No. 223 of 2023 JUDGMENT OF THE COURT 7th & 14th November, 2025 FELESHI. J.A.: The appeal before us arises from the ruling of the High Court (Labour Division) which upheld a preliminary objection and struck out a revision application by the present appellant, Exim Bank Tanzania Limited, for being incompetent. The High Court held that a decision of the Commission for Mediation and Arbitration (the CMA) granting an application for condonation is interlocutory and thus not revisable under rule 50 of the Labour Court Rules, GN No. 106 of 2007 (the Rules). The facts giving rise to this appeal are not complicated. The respondent, Norbert Deogratias Missana, was employed by the appellant i on 11.3.2011 as a Banking Officer. His employment was terminated on 26.11.2015 on grounds of gross negligence allegedly resulting in financial loss. He was subsequently prosecuted in a criminal case based on the same alleged misconduct, but was acquitted on 20.9.2022. Following the acquittal, the respondent requested reinstatement from the appellant, but the latter did not respond. Consequently, on 5.5.2023, the respondent referred a dispute of unfair termination to the CMA, accompanied by an application for condonation of the delay, as the referral was lodged more than seven years after termination. The CMA found the condonation application was meritorious and granted it on 11.8.2023. The appellant, aggrieved by that ruling, filed Revision No. 223 of 2023 before the High Court, challenging the CMA's decision as erroneous. The respondent raised a preliminary objection, contending that the ruling was interlocutory and not subject to revision under rule 50 of the Rules. The High Court upheld the preliminary objection, reasoning that a ruling granting condonation is interlocutory because they do not finally determine the rights of the parties, and remitted the matter to the CMA for continuation of mediation. Dissatisfied, the appellant preferred this appeal with four grounds that: 2 1. The tria l Court erred in iaw in holding that the CMA's decision in grant o f application fo r condonation is interlocutory which cannot be challenged by way o f revision 2. The tria l court erred in iaw in holding that condonation application can only be challenged upon fin a l determ ination o f the case. 3. The tria l Court erred in iaw and fact by failing to consider the principle established in the case o f Com m issioner General Tanzania Revenue Authority vs. Miiam bo Lim ited, C ivil Appeal No. 62 o f 2022 cited in the Appellant reply subm ission, as such reached into unfair decision. 4. The High Court erred in law and fact in interpreting the principle o f tim ely ju stice and rig h t to be heard. When the appeal was called on for hearing, Mr. Philip Lincoln Irungu, learned advocate, appeared for the appellant, whereas Mr. Gilbert Mushi, learned advocate, represented the respondent. Premising his arguments on the appellant's written submissions filed under rule 106 (1) of the Tanzania Court of Appeal Rules, 2009, Mr. Irungu contended that the High Court erred in holding that the condonation order was interlocutory, arguing that an application for condonation determines the CMA's jurisdiction and hence affects substantive rights. He referred us to CRDB Bank Pic v. Lusekelo Mwakapala, (Civil Appeal No. 143 of 2021) [2023] TZCA 17637; Njake 3 Enterprises Ltd v. Blue Rock Ltd (Civil Appeal 69 of 2017) [2018] TZCA 304 and Commissioner General Tanzania Revenue Authority & Another vs Milambo Limited (Civil Appeal 62 of 2022) [2022] TZCA 348 submitting that limitation goes to the root of jurisdiction, and once determined, it finally disposes of the rights relating to the time bar. Further, relying on Lucky Games Ltd v. Salim Madati, Revision No. 53 of 2023 HCLD (unreported), the learned counsel contended that condonation is conclusively determined once the CMA grants or denies it, and therefore it cannot be interlocutory. He argued that, by holding otherwise, the High Court applied "double standards" between applicants and respondents in condonation proceedings. He concluded by urging the Court to allow the appeal, quash the High Court ruling, and remit the matter for hearing of the revision on merit. On the other hand, Mr. Gilbert Mushi, for the respondent supported the High Court decision submitting that, under rule 11 (2) of the Labour Institutions (Mediation and Arbitration) Rules, GN No. 64 of 2007, a condonation application must be filed together with CMA Form No. 1. Hence, it is part of the referral and cannot stand alone. He maintained that the order granting condonation does not determine the substantive dispute but merely allows it to proceed, thus, an interlocutory within the meaning of rule 50 of the Rules. He distinguished the Milambo case (supra) relied on by the appellant, stating that it concerned an application for enlargement of time in prerogative orders where no underlying matter was left pending before the High Court, unlike the present case where a labour dispute subsists before the CMA. In rejoinder, Mr. Irungu reiterated his submission in chief, adding that, condonation is accompanied by a dispute application as a matter of administrative convenience and not law. He argued that, rule 11 of GN No. 64 of 2007 provides for the application for condonation where a party has delayed referring a labour dispute. That the rule does not say it will be accompanied by CMA Form No.l. He referred us to rule 11 (3), (4) and (5) of GN No. 64 of 2007 which he said they provide for the manner in which condonation is applied, proving that the same is an independent application from the main dispute. For that reason, when they are granted or dismissed, it is to start a different referral, which is mediation, he argued. About the applicability of Milambo Case (supra), Mr. Irungu insists that the principles in granting extension of time are the same. 5 Therefore, the decision in that case applies even to the grant of condonation like it was in this matter. We have considered the rival submissions by the counsel for the parties and the law. The issue for our determination is whether an order of the CMA granting condonation is interlocutory within the meaning of rule 50 of the Rules, and therefore not subject to revision until final determination of the dispute. Rule 50 provides: "No appeal, review or revision sh all He on interlocutory or incidental decisions or orders, unless such decision has the effect o f fin a lly determ ining the dispute." It is common knowledge that, the above provision also features in principal legislations such as the Magistrates Courts Act, Chapter 11; the Civil Procedure Act, Chapter 33; the Criminal Procedure Act, Chapter 20 and; the Appellate Jurisdiction Act, Chapter 141; under sections 43 (2), 84 (2), 380 (3) and 8 (2) (d), respectively. This Court has, on several occasions, considered the meaning of an interlocutory order to mean a decision that does not decide the cause but settles some intervening matter relating to it, or orders that do not decide the rights of the parties but are made for the purpose of keeping things in status quo. For further guidance, see Seif Sharif Hamad v. 6 SMZ [1992] T.L.R. 43, and University of Dar es Salaam v. Silvester Crispian & 210 Others [1998] T.L.R. 175 (CA). Recently, in Murtaza Ally Mangungu v. Returning Officer for Kilwa North & Others, Civil Application No. 80 of 2016 [2016] TZCA 2056 and Chama Cha Walimu Tanzania v. Attorney General, Civil Application No. 151 of 2008 [2008] TZCA 12, the Court restated the "nature of the order test", which inquires whether the impugned order finally determines the rights and liabilities of the parties. Applying that test, we agree with the learned Judge of the High Court that the order granting condonation does not finally determine the dispute between the parties. It merely clears a procedural hurdle to enable the CMA to proceed to determine the main complaint on merit. We have also considered Mr. Irungu's argument that accompanying two forms (for CMA FI and CMA F2) are matters of administrative practice and not the law. He reinforced his argument with rule 11 of GN No. 64 of 2007 asserting that, it only provides how applications for condonation should be taken care of without mandating the same to be accompanied by a referral form for dispute. While we agree with him that sub-rules (1), (2), (3), (4) and (5) of Rule 11 of GN No. 64 of 2007 specifically guide on how a party who could not refer his dispute within 7 the limitation period provided under rule 10 (1) and (2) can seek condonation, we decline his view that the CMA FI and CMA F2 are disjointedly referred to the CMA. We hold the view that, had Mr. Irungu thoroughly read those sub-rules he would have obviously noted that CMA FI and CMA F2 are conjointly submitted to the CMA. For example, the provision of sub-rule (2) of rule 11 of GN No. 64 of 2007 that party sh all apply for condonation, by com pleting a n d d e liv e rin g th e p re scrib e d condonation form w hen d e liv e rin g th e docu m en t o r a p p lica tio n to th e C om m ission ..." when read together with Paragraph 7 of the CMA FI, they categorically and mandatorily require a party preferring condonation to conjointly submit both forms to the CMA, when referring a labour dispute. To appreciate what Paragraph 7 of the CMA FI provides, we reproduce it to speak for itself: "7. A P P LIC A TIO N FO R CO N DONA TIO N a) Is an application fo r condonation fo r late filin g o f the dispute necessary? tick the appropriate box.... I f yes, an a p p lica tio n fo r C o n d o n atio n Form s h a ll be a tta ch e d ." [Emphasis added.] 8 In view of the provision of sub-rule (2) of rule 11 and Paragraph 7 of the CMA FI above, and having paid regard to its marginal note which restates the limitation period for labour dispute that is, "/I dispute concerning term ination o f em ploym ent to be referred to the Commission within 30 days, and other disputes within 60 days o f the dispute having arisen " it is evident to us that, the condonation is ancillary to the main cause since it does not give rise to a separate or independent proceedings. Therefore, it follows as the night follows the day that, applications for condonation before the CMA are distinguished from other applications for extension of time, which are stand alone proceedings, and the relief sought conclusively determines the matter. In those circumstances, the High Court correctly distinguished the decision in Commissioner General Tanzania Revenue Authority v. Milambo Limited (supra). We also take the view that CRDB Bank Pic v. Lusekelo Mwakapala and Njake Enterprises Ltd v. Blue Rock Ltd (supra) cited by the appellant's counsel in this matter are distinguishable from the facts in the instant appeal. Additionally, we firmly hold a view that, the arbitrator's discretion under rule 11 of GN No. 64 of 2007 and the requirement to accompany 9 the referral of a dispute with the application for condonation is not for other intention than that of promoting expeditious and fair resolution of labour disputes, with minimal formalities as practically as it may be. For that reason, to treat such an order as final and revisable would defeat the legislative intent to minimize procedural technicalities and expedite labour justice. As the High Court in this matter, aptly observed, to allow immediate revision or appeal against a grant of condonation "would fragm ent proceedings, delay justice, and frustrate the principle that labour disputes should be resolved fairly, quickly, and a t m inim al cost." We respectfully endorse that reasoning. From the foregoing, it is obvious to us that, in the labour framework, where condonation application is not declined, its grant becomes provisional to the parties in same way an intended appellant is granted certificate or leave to access the court with jurisdiction to determine a contested substantive justice on merit. It is for that reason, a party aggrieved by the CMA or Labour Court is entitled to challenge the decision in a revision or appeal because the order will then have resulted into final determination of the rights of the parties. 10 We are thus satisfied that the High Court properly construed the law and applied sound judicial reasoning consistent with earlier decisions of this Court in relation to expeditious labour justice. For the foregoing reasons, we find this appeal devoid of merit. We accordingly dismiss it and order the record to be remitted to the CMA for continuation in CMA/DSM/ILA/260/2023. DATED at DAR ES SALAAM this 14th day of November, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 14th day of November, 2025 in the presence of Mr. Philip Irungu, learned counsel for the Appellant, Gilbert Mushi learned counsel for the Respondent, and Regina Komba, Court Clerk; is hereby certified as a true copy of the original.