National Bank of Commerce (NBC) Limited vs Stima Suleiman Hassan (Civil Appeal No. 273 of 2022) [2025] TZCA 1184 (7 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALI, J.A., KENTE. J.A. And MANSOOR. J.A.^ CIVIL APPEAL NO. 273 OF 2022 NATIONAL BANK OF COMMERCE (NBC) LIMITED ...................... APPELLANT VERSUS STIMA SULEIMAN HASSAN.......................................... .........RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mqanqa. J.) dated the 22n d day of April, 2022 in Misc. Labour Application No. 220 of 2021 JUDGMENT OF THE COURT 28h October & 7t h November, 2025 MANSOOR. J.A.: Stima Suleiman Hassan, who shall be referred to as "the respondent" was employed by the appellant, the National Bank of Commerce Limited (NBC) since 1974. His employment contract came to an end on 8th July, 2014. During the tenure of his employment, that is on 16th June, 2006, the employer, and the employees through Tanzania Union of Industrial and Commercial Workers, "TUICO" had executed a voluntary agreement in which clause 14 of the agreement provided for retirement award/benefits for employees who were in employment of NBC as of 1s t April, 2000 (i.e., at privatization) and who were still in i employment of NBC as of 30th June, 2005. The amount of the award was to be calculated as per Clause 14.2 (a) of the Voluntary Agreement. The respondent who retired on 8th July, 2014, claimed that he was covered by the Voluntary Agreement and so he demanded payment of TZS 47, 607,950.00 as his retirement award calculated as per clause 14 (2) (a) of the Voluntary Agreement. However, NBC refused to pay this amount as they claimed that the Voluntary Agreement had already expired since it was only valid for four years reckoned from the date of its execution in 2006. NBC argued that, the Voluntary Agreement could not be made applicable beyond its duration period and those who retired after the validity date of the Voluntary Agreement could not benefit from it. The respondent, being firm that he is eligible to payment of the retirement benefits under the Voluntary Agreement, applied to the High Court, Labour Division, for interpretation of Clause 14 of the Voluntary Agreement. He filed an application under sections 74 (b) and 94 (1) (e) of the Employment and Labour Relations Act, Cap 366, asking the High Court to make the correct interpretation and implementation of Clause 14 (2) (a) (b) and (c) of the Voluntary Agreement executed on 16th June, 2006 between the appellant and TUICO on behalf of the employees. On 22n d April, 2022, the High Court held that the Voluntary Agreement was still valid and applicable until it is replaced by a new voluntary or collective bargaining agreement as provided in Clause 15 of the Voluntary Agreement. The High Court went on to determine the duration and validity of the Voluntary Agreement holding that the respondent is covered by the Voluntary Agreement and is entitled to payment of retirement benefits as provided in Clause 14 (2) (a) of the Voluntary Agreement. The High Court, however, refrained from specifically deciding whether the respondent is entitled to payment of TZS 47,607,950.00, as claimed. Following the decision by the High Court, both parties were aggrieved. The appellant filed an appeal raising four grounds as follows: 1. The High Court erred in iaw for failure to interpret the validity period o f the VoluntaryAgreement dated l& hJune 2006. 2. The High Court erred in iaw relating to contracts by holding that the Voluntary Agreement dated 16 June 2006 continued to be valid despite its duration period stated in the contract having expired. 3. That the High Court erred in iaw for failure to correctly interpret the contents o f paragraph 14 o f the Voluntary Agreement in a manner that finalised the dispute between the parties in that the High Court did not interpret Clause 14 (2) (a) o f the Voluntary Agreement which limits the benefits o f 50% o f salary to 30th June 2005. The respondent as well filed a cross appeal raising three grounds as follows: 1. After having admitted at page 2 o f his decision that the respondent also claimed for payment o f TZS 47,607,950.00 being his retirement award in terms o f clause 14 (2) (a) and (b) o f the Voluntary Agreement, the learned trial Judge erred in law by holding that the respondent was not entitled for payment o f the said amount because he did not claim for it 2. The learned trial Judge erred in law by failure to award and state the exact amount o f TZS 47,607,950.00 that the respondent is entitled to be paid by the appellant being his retirement award, despite the fact that the respondent claimed the same at paragraph 18 (ii) o f his affidavit in support o f Miscellaneous Application No. 220 o f 2021, therefore making the decision not executable. 3. That the learned trial Judge erred in law by deciding that the respondent did not claim for payment o f TZS 47,607,950.00 being his retirement award while the respondent by praying for implementation o f the Voluntary Agreement in his notice o f application and chamber summons and state the exact amount in affidavit in Miscellaneous Application No. 220 o f 2021 shows clearly that the respondent claimed for the same. Parties filed their respective written submissions in support of and in opposing the appeal and cross appeal in terms of rule 106 (1) of the Court of Appeal Rules, 2009 (the Rules). 4 During the initial hearing of the appeal, Mr. Joseph Ndanzi, learned advocate appeared for NBC, and M r. John Mushi, learned advocate, appeared for the respondent. Parties were resummoned and the hearing was again held on 28 October, 2025, as the Court needed clarification on whether the High Court was furnished with a complete document to be able to properly and fairly interpret Clause 14 of the Voluntary Agreement. We did so in order to satisfy ourselves whether what we have in the record is what was availed to the High Court. The counsel who appeared for the parties when the Court recalled them confirmed that the Voluntary Agreement that is on record is what was filed by the respondent before the High Court. The record of appeal filed by the appellant shows that the respondent presented before the High Court the Notice of Application and Chamber Summons in terms of section 74 (b) of the Employment and Labour Relations Act, praying for the High Court to make the correct interpretation and implementation of clause 14 (2) (a) (b) and (c) of the Voluntary Agreement executed on 16th June, 2006 between NBC and TUICO. Paragraph 4 of the supporting affidavit affirmed by the respondent purported to attach the said Voluntary Agreement as Annexure STM1. However, looking at the annexure which was attached to the affidavit of the respondent, the first page does not show that it is the Voluntary Agreement but something known as '! RECOGNITION AGREEMENT" between National Bank of Commerce Limited (NBC) and Tanzania Union of Industrial and Commercial Workers (TUICO). Then the next page there is a document titled the "Voluntary Agreement" followed by a preamble and clauses 1 to 18 and lastly the signatures of the parties to the Voluntary Agreement. Again, according to paragraph 15 of the purported Voluntary Agreement, there is a mention of the recognition agreement as well as the collective bargaining agreement, forming part of the Voluntary Agreement and these three agreements run concurrently. The last line of Clause 15 of the Voluntary Agreement made it clear that the duration of the recognition and collective agreements annexed in the Voluntary Agreement runs concurrently with the Voluntary Agreement, it reads: "...the duration o f the recognition and collective bargaining agreements annexed hereto will run concurrent with the VoluntaryAgreement". Furthermore, Clause 16 of the Voluntary Agreement provides that, a Recognition Agreement appearing as Annexure VI of the Voluntary Agreement forms part of the Voluntary Agreement whose purpose is establish the relationship of the parties in the Voluntary Agreement, and Clause 17 of the Voluntary Agreement mentions Collective Bargaining Agreement which appears as Annexure VII of the Voluntary Agreement which also forms part of the Voluntary Agreement and whose purpose is to set out general principles to govern the collective bargaining process between the parties. Perusing through the record of appeal, and as admitted by both counsel for the parties, it is apparent that, neither the Recognition Agreement mentioned in clause 16 of the Voluntary Agreement nor the Collective Bargaining Agreement mentioned in clause 17 of the Voluntary Agreement were attached to the Voluntary Agreement. As stipulated in clause 16 and 17 of the Voluntary Agreement, these other two agreements form part of the Voluntary Agreement, and without these two agreements, the Voluntary Agreement becomes incomplete. Furthermore, clause 17 of the Voluntary Agreement clearly provides that the duration of the Recognition Agreement will be provided in the Recognition Agreement itself, which Agreement was not availed to the High Court Judge to enable him interpret the Agreement in its complete form. Again, clause 15 of the Voluntary Agreement shows that the Agreement was to be registered with the Industrial Court. Once registered the Agreement was to be regarded as an Award of the Industrial Court capable of execution as a decree of the Court. 7 As admitted by the counsel who appeared for the parties, as well as is clear from the record of appeal that, neither the three Agreements in their complete form nor any Award of the Industrial Court were availed to the High Court. We are of the view that, the respective agreements and information would have enabled the Judge of the High Court to give a meaningful interpretation of either Clause 14 of the Agreement or the enforcement of the Award of the Industrial Court. Clause 15 reads: "The Voluntary Agreement will be effective for four (4) years from the date o f signing by both parties and its registration as an Award o f the Industrial Court..." It is therefore crystal clear that according to clauses 15, 16 and 17 of the Voluntary Agreement, the three Agreements were to be availed to the Judge to enable him make a fair and just interpretation of the clauses in the Voluntary Agreement, as one agreement could not be read in isolation of the other, as they all form part of the Agreement. The High Court Judge could only be able to interpret clause 14 of the Voluntary Agreement if he was availed with the recognition agreement and the collective bargaining agreement as part of the Voluntary Agreement so as to know the validity period of the recognition agreement and the collective bargaining agreement "as the duration o f the recognition and collective bargaining agreements run concurrently with the Voluntary Agreement." as provided in clause 15 of the Voluntary Agreement. It is trite law that, when an agreement explicitly states that annexures form part of the agreement, they are legally considered an integral part of the overall contractual document. This means the annexures, along with the main agreement, are the complete and binding terms of any agreement. The annexures, like the main agreement, contain the terms and conditions that are legally binding on the parties involved. The agreement is incomplete without the annexures as the terms in the annexures are legally incorporated in the Agreement. Thus, the Judge of the High Court was not availed with the complete agreement to enable him correctly and effectively interpret clause 14 of the Voluntary Agreement. Therefore, since the two agreements which were an integral part of the Voluntary Agreement i.e., the Recognition Agreement as well as the Collective Bargaining Agreement were not availed to the trial Judge, to enable him completely interpret the Voluntary Agreement, the proceedings before the High Court becomes meaningless and a nullity. 9 Based on the above, we find it unnecessary to determine the grounds of appeal and the cross appeal. We therefore invoke the provisions of section 4(2) of the Appellate Jurisdiction Act, Cap 141, to revise and nullify the proceedings of the High Court in Miscellaneous Labour Application No. 220 of 2021 and set aside the order. Ultimately, we order the de novo hearing of the application in accordance with the law before another Judge as speedily as possible. We make no orders as to costs. DATED at DAR ES SALAAM this 28th day of October, 2025. F . L. K. WAMBALI JUSTICE OF APPEAL P . M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered virtually this 7th day of November, 2025 in the presence of Ms. Anna Meela, learned counsel for the Appellant and M r. John Mushi, learned counsel for the Respondent, and Ms. Christina Mwanandenje, Court clerk, is hereby certified as a true copy of the