New Forest Company Limited vs Tinashe Bhunu (Civil Appeal No. 294 of 2023) [2025] TZCA 1105 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA fCORAM; MWANPAMBO, 3.A. MAIGE 3.A. And MANSOOR. 3.A > CIVIL APPEAL NO. 294 OF 2023 THE NEW FOREST COMPANY LIMITED... .... . APPELLANT VERSUS TINASHE BHUNU...,........ . ............ . .... . ............ .... . RESPONDENT (Appeal from theJudgement of the High Court of Tanzania at Iringa) (Kalombora. J.'t dated the 25th day of March, 2013 in Labour Revision No. 02 of 2013 JUDGMENT OF THE COURT 7th & 1 .5th October, 2025 MANSOOR, 3.A.: The appellant, the New Forest Company Limited, being aggrieved by the decision of the High Court which confirmed the decision of the Commission for Mediation and Arbitration (CMA), awarding the respondent an amount of USD 139,026.20, for unfair termination, preferred the present appeal before the Court. i

The appellant who was represented by Mr. Moses Ambindwile, learned advocate, raised five grounds of appeal in the memorandum of appeal. However, the respondent through Mr. Evans R. Nzowa, learned advocate, conceded to the first and fifth grounds stating that, as reflected from the record, it is true that all the witnesses did not take oath or affirmation before their testimonies were recorded by the CMA. Besides, the record also shows that, the arbitrator cross examined the witnesses during trial. After the concession, counsel did not make any submissions, but they both agreed that the matter be remitted to the CMA for retrial. Before dwelling into deciding on the two grounds that were conceded to, we find it aptly to state, albeit briefly, the facts that brought about the dispute. The record shows that, Tinashe Bhunu (the respondent), was employed by the appellant as the Pole Treatment Plant Manager on 19th February, 2011. The respondent's responsibilities under the contract of employment were to manage the Pole Plant including stock control of all raw materials as well as pole stock quality management. The appellant received a complaint from one of its major customers on the substandard quality of poles supplied to it. Due to the complaint, the

respondent was suspended on 23rd March 2012, to pave way for investigations. The investigation revealed that the customer rejected about 3131 poles and some poles were missing causing the loss of USD 148,133.44 as well as the loss for purchasing 1244 poles amounting to USD 58,858. After the outcome of the investigation, the respondent was formally charged for gross negligence and dereliction of duties causing loss to the appellant's company, and also for gross negligence in the management and monitoring of goods and quality standards of poles. He was served with the notice of hearing before the disciplinary committee. The disciplinary hearing was held on 12th April 2012, and the committee found the respondent guilty as charged. He was issued with a letter of termination on 13th April 2012. The respondent was aggrieved by the termination and filed a complaint before the CMA. After a full hearing, the CMA found that the termination was unfair both procedurally and substantially. He was thus awarded a total of USD 139,026.20, comprising of payment of one month's salary in lieu of notice, repatriation costs, compensation for unfair termination equivalent to 12 months' salary, and other incidental

benefits. The appellant was also ordered to issue him with a Certificate of Service. As stated hereinabove, the appellant's first attempt to challenge the decision of the CMA in Revision No. 2 of 2013 filed before the High Court was dismissed on 25th March 2013, hence the present appeal. Now, in determining the two issues raised by the appellant and conceded by the respondent, it is apparent from the record that all the witnesses for both sides of the case did not take oath or affirmation when testifying before the CMA. The first witness introduced himself only by his first name without stating his surname, he said, his name is Jonathan and was a Christian, but he did not swear before he gave his evidence. The second witness for the appellant was Dare Snow Downs, a Christian, he gave his evidence without taking oath. The third witness was Michael Samuel Kilagame, also a Christian but his evidence was recorded without taking oath. On the part of the respondent, the respondent himself gave evidence without taking oath, although he notified the arbitrator that he was a Christian. It is therefore apparent from the record that the CMA did not administer oaths to all the witnesses before recording their testimonies. The omission to administer oath to witnesses at trial is fatal and

contravenes the provisions of rule 25 (1) of the Labour Institutions (Mediation and Arbitration) Guidelines, GN No. 67 of 2007 (the guidelines), which provides as follows: "The parties shall attempt to prove their respective cases through evidence and witnesses shall testify under oath..,/' It is a mandatory requirement under rule 25 (I) of the guidelines, that all witnesses capable of testifying must take either an oath or affirmation, depending on their faiths. The omission to administer oath or affirmation, whether due to negligence or to a mistaken view of the law, cannot be cured under any rule of the above cited guidelines and as such renders the evidence inadmissible. Compliance of rule 25 (1) is not optional, it is mandatory that all witnesses who testify before the CMA, must do so under oath. The reasons underlying such a requirement is to ensure that the witness is made aware that he or she is giving evidence before a judicial body in a judicial proceeding and has a duty to speak the truth and only truth. We have clearly observed the reasons underlying the administration of oaths to witnesses in Ally Ngozi vs Republic

(Criminal Appeal No. 216 of 2018) [2020] TZCA 1786 (24 September 2020). We stated as follows; "The reason underlying taking oath in judicial proceedings is because a witness is liable to speak the truth only after taking an oath. In our jurisdiction if any witness lies in judicial proceedings after taking an oath for speaking the truth, then it is itself an offence under section 106 of the Penal Code [CAP 16 RE 2019] for giving or fabricating false evidence which applies after taking an oath." As to what are the consequences of failure to administer oaths or affirmation to witnesses, we stated in North Mara Gold Mine Limited vs Khalid Abdallah Salum (Civil Appeal No 463 of 2020) [2022] TZCA 1 (10 January 2022, TANZL.il), that, failure to administer oath or affirmation to witnesses is fatal and vitiates trial. We thus stated: "Secondly, it is not in dispute that the provisions o f Rule 25 (1) of the Rules were not complied with in respect of PW1 and DW1 as their evidence was not taken on oath. We are aware that failure of the witness to take an oath or affirmation before he testifies, contravenes the law as held by the Court in Catholic University of 6

Health and Allied Sciences (CUHAS) v . Epiphania Mkunde Athanase (supra)/' See also the case of Catholic University of Health and Allied Sciences (CUHAS) vs Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020, in which we stated that: "Where the law makes it mandatory for a competent witness to testify on oath, 'the omission to do so vitiates the proceedings because it prejudices the parties' case. This prejudice arises because unsworn testimony tacks the solemnity and legal weight that an oath imparts, potentially leading to unreliable evidence forming the basis of a decision ; thereby undermining the fairness and integrity of the dispute resolution process for all involved." Again, in North Mara Gold Mine (supra), we stated that, the evidence of the witnesses wrongly admitted are to be quashed and the award, the proceedings and judgement of the lower courts or tribunals which emanates from null proceedings are to be nullified and quashed, and in some cases, depending on the circumstances of the case, the records are remitted to the lower courts for retrial. We thus stated:

"Consequently, we invoke the provisions of section 4(2) of the AJA to revise and nullify the proceedings of the CMA with respect to the evidence o f PW1 and DW1 and the resultant award. Equally important, the proceedings of the High Court in Labor Revision No.25 of 2019 are nullified and quashed. Ultimately we order that Labor Dispute No. 15 CMA/ MUS/ 187/ 2019 be remitted to the CMA for rehearing the testimonies of PW1 and DW1 before another Arbitrator in accordance with the law followed by composing the award as soon as practicable See also Iringa International School vs Elizabeth Post (Civil Appeal No. 155 of 2019) [2021] TZCA 496 (20 September 2021, TANZLII), and Unilever Tea Tanzania Limited vs Davis Paul Chaula (Civil Appeal No. 290 of 2019) [2021] TZCA 760 (24 September 2021, TANZLII). In the instant appeal therefore, and as shown above, as all witnesses who testified before the CMA did not take oath or affirmation as per the requirements of the law, the entire proceedings before the CMA were a nullity. Consequently, we hereby quash the proceedings of the CMA and the High Court for being a nullity. Resultantly, we set aside the award issued by the CMA in CMA/I R/4/2012 and confirmed by the

High Court in Revision No. 2 of 2013. In the end, we order that the matter be remitted to the CMA for hearing de novo before another Arbitrator in accordance to the law. DATED at IRINGA this 13th day of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 15th day of October, 2025 in the presence of Mr. Moses Ambindwile, learned counsel for the Appellant, also holding brief to Mr. Nzowa, learned counsel for the Respondent and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original. 4 < v. ■ V / /-A*. • * f/K / J 7 ? p f 0. H. KINGWELE t e l vv* DEPUTY REGISTRAR u COURT OF APPEAL • A y r " . ’■ 9