Big Time Highland Co. Ltd vs Gasper Benard Mjami & Others (Civil Appeal No. 260 of 2024) [2025] TZCA 1100 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA ATIRINGA ( CORAM: MWANDAMBO, 3.A.. MAIGE, J.A. And MANSOOR. J.A.V CIVIL APPEAL NO. 260 OF 2024 BIG TIME HGHLAND CO. LTD . ......... . ............. . ............. . APPELLANT VERSUS GASPER BENARD MJAMI ........... . ....................... . ............... I st RESPONDENT SHAMOON SHAIBU MAFUMBILO........................ ......... . 2 nd RESPONDENT GODLOVE ELIAS MATIKU...., ............... . ............. . .......... 3 rd RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (M wipopo , dated the 16th day of June 2023 in Labour Revision No. 02 of 2023 JUDGMENT OF THE COURT 13th & 15th October, 2025 MWANDAMBO, J.A.; The appellant, Big Time Highland Company Limited, is before the Court in her quest to overturn the decision of the High Court (Labour Division), sitting at Iringa, henceforth, the Labour Court, dismissing its application for revision in Labour Revision No. 2 of 2023. In that decision, the Labour Court concurred with the Commission for Mediation and Arbitration ("the CMA") that the termination of the respondents on operational requirement was procedurally unfair. Briefly, the respondents were, until their date of termination on 1 April 2020, employees of the appellant in different capacities under distinct contracts of employment. Due to economic hardships the appellant went through, on 13 January 2020, it issued a notice of impending retrenchment to all employees followed by a notice of consultative meeting to be held on 1 February 2020. After the consultative meeting in which the appellant disclosed the reason for termination; economic hardship, amongst other issues, on 29 March 2020, it issued notices of termination to the respondents terminating their employment contracts effective from 1 April 2020. The respondents referred a complaint to the CMA challenging the termination for being substantively and procedurally unfair and sought several reliefs in that regard. Apart from contesting the complaint on its merit, the appellant raised a preliminary objection on a point of law challenging the maintainability of the dispute for being preferred in contravention of section 38 (2) of the Act. After hearing arguments for and against the preliminary objection, guided by rule 23(9) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN No. 67 of 2007(wthe Rules")/ the CMA deferred its decision on it having taken the view that, it was premature to make a decision without hearing evidence from the parties with a note that it would be determined in the award. The CMA proceeded with the arbitration on four issues, that is; (1), whether the appellants were retrenched; (2) whether the respondent had valid reasons to terminate the respondents; (3) whether the appellant followed a fair procedure in retrenching the respondents and; (4) what reliefs the parties were entitled to. It is observed that as there was no dispute as to the respondents' retrenchment, the first issue was redundant. The CMA determined the 2n d issue affirmatively and found that, the appellant had proved that there was a valid reason for retrenchment. As to the 3rd issue, while the CMA was satisfied that the employer had proved consultation with the employees, the respondents inclusive but failed to disclose one of the key components in the process; disclosure of all relevant information behind the intended retrenchment as required by section 38 (1) (b) of the Act before being redesignated as section 39(1) (b) by the 2023 revised edition of the laws. It thus sustained the complaint to that extent granting reliefs to the respondents in the form of payment of compensation equivalent to five months' salaries to each of them. Before the Labour Court, the appellant resented the CMA award, faulting it on two grounds namely; one, holding that there was insufficient disclosure in the consultative meeting and; two, lack of jurisdiction by the CMA as the retrenchment process had been completed. In its decision, the Labour Court (Mwipopo, J), found no merit in both grounds. Specifically, the Labour Court dismissed the second ground and reasoned that, in the absence of evidence proving that the parties had reached an agreement during the consultative meeting, the CMA rightly entertained the dispute on the fairness of the termination. Still dissatisfied, the appellant has instituted the instant appeal against the impugned decision on two grounds. However, despite hearing the appellant's counsel on both grounds, the determination of the appeal turns on the 1s t ground which raises the issue whether the CMA had jurisdiction to determine the dispute after the parties had executed a retrenchment agreement. Messrs. Jally Willy Mongo and Jonas Burton Kajiba, both learned advocates, appeared before us for hearing of the appeal representing the appellant and respondent, respectively. Mr. Mongo stood by the written submissions filed earlier by the appellant's erstwhile advocate before making a few oral arguments by way of emphasis. With notable lucidity, counsel argued that, before the CMA, the appellant raised an objection on its jurisdiction but the CMA took the view that it was premature to determine it at that stage and deferred it to be incorporated in the award after hearing evidence. Nevertheless, counsel argued, the CMA made no determination of its jurisdiction in the award contrary to its undertaking in a ruling appearing at page 145 of the record of appeal. Submitting further, Mr. Mongo drew our attention to pages 276 and 277 of the record where the Labour Court concurred with the CMA that it had jurisdiction to entertain the dispute based on fairness of the termination. He pointed out that, that was notwithstanding the fact that the CMA made no determination on jurisdiction having deferred it pending hearing of the evidence contrary to its undertaking in its ruling at page 145 of the record. Counsel argued that, making the award on the dispute without determining the preliminary jurisdiction, the CMA made a fundamental error having a bearing on the award. He relied on the Court's decisions in Thabit Ramadhani Maziku & Another v. Amina Khamis Tyela & Another [2011] TCA 223 and Wilson Richard v. Nokia Solutions & Network Tanzania Limited [2023] TZCA 615. The Court insisted in the cases cited that, it is imperative for the court to determine a preliminary objection before proceeding on the merit of the matter particularly, as it were, such point touches on the court's jurisdiction. By reason of that omission, counsel invited the Court to quash the CMA's award for being a nullity. It was his further submission that, had the Labour Court directed its attention to the provisions of rule 28 (1) (b) and (c) of the Labour Court Rules, G. N. No. 106 of 2007 in the application for revision, it should have exercised its power and quashed the award for being a nullity. Since that was not done, the learned advocate invited us to quash the impugned award which will result in quashing the proceedings of the Labour Court and the resultant decision for being a nullity. Having so done, counsel urged the Court to remit the record to the CMA for it to compose a fresh decision incorporating a determination on jurisdiction. Initially, Mr. Kajiba was determined to contest the 1s t ground but, upon reflection, relying on the Court's decision in M/s Anjari Soda Factory Limited v. Joseph Tulo Shembilu & Others [2023] TZCA 17293 ("Anjari"), conceded it as well as the way forward in the manner submitted by Mr. Mongo. We shall begin our discussion with the well settled practice with regard to preliminary objections which holds that the court must dispose of it before proceeding with the merits of the matter. This is even more compelling as it were in this appeal considering that the preliminary objection raised by the appellant at the CMA involved its own jurisdiction to entertain the labour dispute before it. As we said in Richard Julius Rukambura v. Isaack Ntwa Mwakajiia & Another [2004] TZCA 67: "... The question o fjurisdiction is paramount in any court proceedings. It is so fundamental that in any trial even if it is not raised by the parties at the initial stages, it can be raised and entertained at any other stage of the proceedings in order to ensure that the court is properly vested with jurisdiction to adjudicate the matter before it .. " Earlier, in Bank of Tanzania Ltd v. Devram P. Vaiambhia [2002] TZCA 67, the Court underscored the rationale behind a preliminary objection being to save the time of the court and of the parties by not going into the merits of the application because there is a point of law that will dispose of the matter summarily. See also, the Court's decision in Shahida Abdul Hassanali Kassam v. Mahedi Mohamed Gulamali Kanji [2000] TZCA 76. In M/s Anjari, we took note of the fact that, unlike the practice obtaining in ordinary courts where the disposal of preliminary objections, the position is not the same with the CMA and that explains the Arbitrator's approach deferring determination of the point pending receipt of evidence. Pertinently, the disposal of preliminary objections before the CMA are regulated by sub rules (8), (9) and (10) of rule 23 of GN 67 of 2007 (the Rules) which provide as follows: "(8) In the event o f preliminary issues being raised, each party shall be given the opportunity to present evidence and arguments. (9) The Arbitrator may elect to decide the preliminary point before proceeding with the i arbitration or to conduct the arbitration and decide the preliminary point at the time of considering ail the evidence in the matter. (10) In some instances, it may be necessary to determine the preliminary points before proceeding with the arbitration." In Anjari, the appellant raised a preliminary objection on the locus of the trade union representing the claimants before the CMA. Despite its inclination to dispose it first in terms of rule 23(8) of the Rules, the CMA left it unaddressed and proceeded with the determination of the labour dispute on merit. Apparently, iike here, the matter eluded the Labour Court in an application for revision. On appeal, the appellant's representative drew the Court's attention to the anomaly. The court observed: "Our interpretation of the above three sub rules is that whether the Arbitrator determines the preliminary objection before or after conducting arbitration is a matter at the Arbitrator's discretion but the same should be exercised after receiving evidence and arguments as per sub rule (8). In this case, no evidence or arguments on the PO were received by the Arbitrator as required, so it cannot be said that the arbitrator's decision was deferred to the end." 8 Though the position in the instant appeal reveals that the CMA proceeded under rule 23(9) of the Rules, the end result is the same, that is, in both cases, preliminary objections were not addressed before the CMA determined the labour disputes on their merits. In an analogous situation involving omission to determine a preliminary objection touching on the court's jurisdiction, in Thabit Ramadhani Maziku & Another (supra) cited to us by Mr. Mongo to which, reference was made in Anjari, the Court stated: "the failure by the learned Resident Magistrate with extendedjurisdiction to deliver the ruling on the preliminary objection which he scheduled on 16/9/2009 constituted a colossal procedural flaw that went to the root of the trial. It matters not, whether it was inadvertent or not The trial court was duty bound to dispose o f it fully, by pronouncement of the Ruling before dealing with the merits of the suit This it did not do. The result is to render all the subsequent proceedings a nullity. Accordingly, we find merit in ground 2 of the appeal, which as we stated earlier is sufficient to bring this appeal to a dose." Conscious of the above and mindful of its duty to correct illegalities and ensure proper application of the laws by the subordinate courts and/or tribunals reiterated in Adelina Koku Anifa & Another v. 9 Byarugaba Alex [2019] TZCA 416.,.the Court found it inevitable to right the wrong in the CMA. This it did by quashing the proceedings and setting aside the award before remitting the matter to the CMA directing it to determine the unattended preliminary objection. In this appeal, in so far as the CMA proceeded under rule 23(9) of the Rules, by deferring determination of the preliminary objection to the end after receiving evidence, it was bound to determine it this way or the other in its final decision. Since this was not done as agreeable by both counsel, and as we said in Thabit Ramadhani Maziku (supra), the omission was so fundamental and fatal to the award rendering it a nullity. As alluded to earlier on, the irregularity went undetected by the Labour Court and thus proceeding on a nullity. In view of the foregoing, we think we cannot determine the 1s t ground and allow the appeal in the manner urged by the learned advocates. This is because, doing so will be tantamount to determining the very issue that the CMA left undetermined. Under the circumstances, we take the same path we took in Anjari and invoke the Court's power of revision under section 6 (2) of the Appellate Jurisdiction Act. Consequently, the CMA's award in Labour Dispute CMA/IR/ARB/ 10/2021 delivered on 2 March 2022 is set aside for being a nullity. So are the proceeding before the Labour Court as well as the resultant decision. 10 Going forward, we remit the matter to the CMA and direct it to compose a fresh award expeditiously which will entail determining the preliminary point after considering all the evidence and arguments in the matter in compliance with rule 23 (9) of the Rules. Order accordingly. DATED at IRINGA this 14th day of October, 2025. Judgment delivered this 15th day of October, 2025 in the presence of Mr. Jally Willy Mongo, learned Advocate for the Appellant, Mr. Jonasi Burton Kajiba, learned Advocate for the Respondent and Mr. Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL DEPUTY REGISTRAR * COURT OF APPEAL li