Selemani Migeto vs The Registered Trustees of Elizabeth Glaser Pediatric AIDS Foundation (Civil Appeal No. 1542 of 2024) [2025] TZCA 1137 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA. J.A., MGEYEKWA, J.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 1542 OF 2024 SELEMANI M IGETO ................................................................... APPELLANT VERSUS THE REGISTERED TRUSTEES OF ELIZABETH GLASER PEDIATRIC AIDS FOUNDATION............................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tabora) (Kadilu 3.) dated the 24th day of September, 2024 in Labour Revision No. 25882 of 2023 JUDGMENT OF THE COURT 8th & 15th October, 2025 GALEBA, 3.A.: On 1s t December, 2021, the appellant Selemani Migeto was employed by the respondent, the Registered Trustees of Elizabeth Glaser Pediatric AIDS Foundation, as a Technical Officer, TB Services. The original work station was Arusha, Tanzania, and the fixed term of the contract was 22 months expiring on 30th September, 2023. However, on 2n d January, 2023, after the appellant had been transferred from Arusha to Tabora, and before the contract could expire, the respondent terminated it on grounds that, the appellant had committed acts of dishonest and collusion.

The material facts that gave rise to the dispute between the parties as may be gathered from the record is that, it was the respondent's policy that when an employee is transferred from one work station to the other, the respondent was responsible to pay for transportation of such employee's personal effects from the station he is shifting from, to the station at the destination. In this case, it happened that in June 2022, the appellant was transferred from Arusha to Tabora work station. His luggage was supposed to be transported from Arusha to Tabora by a third-party vendor called Silvia Nicolas Mtalo Transport, who on 30th September, 2022, was paid TZS. 3,200,000.00 for that assignment. Meanwhile, on 1s t October, 2022, the respondent's Senior Finance Manager called Ronald Maro, deposited TZS. 1,650,000.00 on the appellant's CRDB bank account. According to the respondent, that money was from the vendor, for unlawful appropriation by the appellant as a kickback. The appellant's defense was that, the money related to the cattle business between him and Mr. Maro and had nothing to do with transportation of his personal belongings to Tabora. Nonetheless, his employment contract was terminated on grounds of "dishonesty and colluding v/ith a fellow employee, to obtain kickback from a vendor ". That, 2

was essentially the reason for termination of the appellant's employment prematurely. Aggrieved, the appellant approached the Commission for Mediation and Arbitration at Tabora (the CMA), and lodged labour application No. CMA/TBR-MJN/2/2023/04. The cause of action was breach of contract, and the major relief was payment of T7S. 34,183,242.00. The CMA heard the dispute and held that the respondent unlawfully breached the contract and ordered her to pay the appellant TZS. 34,183,243.17, an amount equivalent to 9 months salaries which was the unexhausted period of his fixed term contract. The above award of the CMA aggrieved the respondent who filed Labour Revision No. 1542 of 2023 to the High Court, (the first appellate court). The application was heard, and finally the decision of the CMA was set aside on grounds that the termination of the employment contract by the respondent was justified. Challenged before us, in this appeal, is the decision of the High Court. Initially, the appellant had raised three grounds of appeal but at the hearing, Mr. Saikon Justin Nokoren, learned advocate who was appearing for the appellant, abandoned the first ground of appeal and retained only the following grounds: 3

" i. The learned appellate Judge erred in law by treating and determining the grounds o f appeal as those o f unlawful termination o f employment rather than breach o f contract 2. The learned appellate Judge erred in law by ignoring the appellant's counter affidavit\ thereby violating his right to a fair hearing." Mr. Stephen Axwesso learned advocate, who appeared for the respondent before us, had lodged a notice of preliminary objection that all grounds of appeal were matters of fact, thereby offending the provisions of section 58 of the Labour Institutions Act (the LIA). However, on a reflection, he withdrew the objection targeting the second ground of appeal, but retained it against the first. In determining this appeal, we will start with the second ground. In supporting it, Mr. Nokoren submitted that the first appellate court did not consider the applicant's counter affidavit, which to him was a violation of the appellant's right to be heard. He referred to this Court's decision in Macedonia Nursery & Primary School v. Franco Chacha Nyakimori, Civil Appeal No. 489 of 2022 (unreported). Because the appellant's right to be heard was violated, the learned advocate moved

the Court to nullify the ruling of the first appellate court and make appropriate orders. In reply, Mr. Axwesso decided to go specific and pointed out a few points raised in the counter affidavit, which were considered and resolved in the impugned ruling. First, he submitted that the complaint that the appellant's termination of employment was without approval of the respondent's Vice President, Human Resources and Administration, was considered and resolved at page 494 of the record of appeal. Second, the fact that the appellant was not accorded adequate time to prepare himself before going to the disciplinary committee, was also resolved by the court in its ruling. In summary, Mr. Axwesso, was of the position that, in composing the contested ruling, the learned Judge considered all relevant materials from both sides of the application, including the counter affidavit. In view of that, the learned advocate urged us to dismiss the second ground of appeal for want of merit. In rejoinder, Mr. Nokoren reiterated his submissions in chief, maintaining that the Judge relied on no evidence to reach at the ruling she came up with. The issue for our resolution in the second ground of appeal, is whether the first appellate court violated the appellant's right to be heard. 5

This point will not take us hours and hours to decide, it is straight forward. With respect to Mr. Nokoren, we do not agree with him that the appellant was not afforded a right to be heard at the High Court; the appellant was properly heard; he was served with the chamber summons and the affidavit, he filed the counter affidavit in challenging the application and even at the hearing, Mr. Nokoren himself represented him and advanced arguments to defend the appellant. Failure by the court to evaluate or to refer to evidence or coming up with a decision relying on no evidence at all, is a violation of some other principle, as we will indicate, but certainly it is not a violation of a right to be heard. So, the second ground of appeal has no merit and we dismiss it. Although we have dismissed the above ground of appeal, we are not done with the ruling of the first appellate court. The High Court is a court of record, and its judgments must always be capable of reference by subordinate courts. We say so because, when preparing for hearing of this appeal, we totally failed to trace the reason for terminating the appellant's employment. We too failed to trace any evidence that linked him with any allegations of collusion. Therefore, in the course of hearing the appeal, we inquired from Mr. Axwesso as to how did the appellant materially breach the contract before the respondent could terminate him.

The learned advocate, referred us to pages 172 and 173 of the record of appeal, where during cross examination at the CMA, the appellant failed to specifically state when he started cattle trade business, how many herds were worth the money paid, and failed to prove that he had a business licence to trade in livestock. We noted also that the first appellate Judge, held the appellant to have committed collusion because, he was unable to prove that he was legally trading in livestock. In setting aside the award of the CMA, this is what the first appellate court ruled at pages 492 to 494 of the record of appeal where it stated: "The records indicate that in June 2022, the respondent was transferred from Arusha to Tabora. The applicant paid Silvia Mtafo (the vendor) the costs for transporting the respondent's luggage from Arusha to Tabora. The respondent allegedly colluded with the Vendor and Arusha Senior Finance Manager (Ronald Maro) and obtained TZS. 1,650,000.00 through his CRDB account as part o f the expenses for relocating him from Arusha to Tabora. He denied that the said money was associated with his relocation. He testified that the TZS. 1,650,000.00 was part o f the proceeds o f cattle business he was conducting with the Senior Finance Manager, Ronald Maro. On cross- 7

examination, the respondent failed to give any details about the alleged cattle business including when it started, the number of cattle that were sold, and earned him TZS. 1,650,000.00, the date o f the purported sale o f cattle, and the place where the said cattle were sold. Generally, he failed to justify that TZS. 1,650,000.00 credited to his bank account by the applicant's Senior Finance Manager was not a kickback from the Vendor. He also denied this allegation evasively in his written defence to the disciplinary charge (Exhibit P3), which is why the Disciplinary Committee found him guilty o f misconduct. In the upshot ; the present application is merited. It is the finding of this court that the respondent's termination was fair both substantively and procedurally. The 9 months' salary to the respondent is legally unjustified. Accordingly, the CMA's award is hereby revised and set aside." [Emphasis added] An undivided attention to the above findings of the first appellate court, clearly indicates that instead of looking for evidence tracing and tracking the money movement from the respondent to Silvia Mtalo, then

to Ronald Maro, and finally terminating to the appellant's bank account, the court was satisfied that the appellant's failure to justify his business in cattle, amounted to a material breach of the fixed term contract to justify the respondent's act of terminating his employment. With respect, that conclusion did not accord with, and was offensive of the purpose and spirit of the provisions of rule 8 (2) (a) of the Employment and Labour Relations (Code of Good Practice) Rules 2007, G.N. No. 42 of 2007, which forbids termination of fixed term contracts unless it is proved that an employee committed a material breach of the employment contract. That rule provides that: " Where an employer has employed an employee on a fixed term contract ; the employer may only terminate the contract before expiry o f the contract period if the employee materially breaches the contract" In other words, for an employer to terminate a fixed term contract prematurely, he (the employer) must be able to point to a material breach of the agreement by the employee. That, in our view, is also the import of section 61 (2) (a) of the LIA, on the party to whom a burden of proof lies. That section provides that:

"(2) In any civil proceedings concerning a contravention o f a labour law; (a) the person who alleges that a right or protection conferred by dny labour law has been contravened shall prove the facts o f the conduct said to constitute the contravention unless the provisions o f subsection (1) (b) apply . " In this case, the appellant's failure to discharge the burned which was not his, was taken by the first appellate court as a good ground to affirm collusion, hence his termination. Thus, quite unusually the court reached at a decision erroneously without any evidence from a party supposed to produce it, namely the respondent. That finding placed us at crossroads. The tricky part being that no one raised the issue we just discussed, it was not in the memorandum of appeal and it was not brought to the attention of the court by any of the parties. But at least parties addressed us on it. Mr. Axwesso stated that there was no material before the judge to rely upon, except failure by the appellant to justify that he was legally trading in livestock. Mr. Nokoren maintained that there was no evidence relied upon to revise the decision of the CMA. In our judgment, in such a situation, we need to invoke the provisions of section 6 (2) of the Appellate Jurisdiction Act (the AJA), and 10

revise the decision of the High Court, so that an illegality does not remain on record, and we will justify that course. Section 6 (2) of the AJA provides that: "(2) For all purposes of, and incidental to the hearing and determination o f any appeal in the exercise o f the jurisdiction conferred upon it by this Act, the Court o f Appeal shall, in addition to any other power, authority and jurisdiction conferred by this Act, have the power o f revision and the power, authority andjurisdiction vested in the court from which the appeal is brought" The depth and width of the jurisdiction of this Court vested by section 4 (2) of the Appellate Jurisdiction Act, 1979, which is a replica of the present day section 6 (2) of the AJA, was clearly detailed in the case of SGS Societe Generale De Surveillance A and Another v. VIP Engineering and Marketing Ltd and Another Civil Application No. 107 of 2006 (unreported), where this Court stated: " Coming to section 4 (2), the first requirement is that there must be a duly initiated appeal. That is, the court must have been seized with an appeal having been duly lodged. Second \ the re visional jurisdiction under section 4 (2) is to be invoked in the course o f the hearing and determination o f an li

appeal. It is not sufficient that an appeal is pending or awaits to be called for hearing.... An example suffices. In Executive Secretary Wakf and Trust Commission o f Zanzibar v. Hemed Abdaiiah Hemed \ Civil appeal No. 13 o f 2000 (CAT) (unreported), while adjudicating an appeal, the Court discovered that the High Court had issued an order granting leave to sell the wakf property in Civil Case No. 37 o f 1990 which power was exercised illegally as section 14 o f the Wakf Property Decree, Cap 103 vested in the relevant Minister that power. The Court posed this question: "Would this court wring its hands in utter desperation and let an illegality stand?” It said no, and held that it was appropriate for the ends o f justice to invoke its power o f revision under section 4 (2). It quashed the order, nullified the sale o f the house and ordered that leave be obtained from the appropriate Minister under section 14 o f the Wakf Property Decree. Third, it is a well settled principle o f construction that the words o f a statute are first understood in their ordinary meaning unless that leads to some absurdity or there is something in the context or in the object o f the statute to suggest the contrary.. .Fourth, the revisionaIjurisdiction under section 4 (2) is invokable by the Court itself (see, 12

Dar es Salaam Education and Office Stationery case, supra). For clarity, it is not excluded that a party may draw the court's attention to an illegality or irregularity occasioning a miscarriage o f justice in the lower court's proceedings or judgment and on which the court may decide to invoke its revisional jurisdiction under section 4 (2). It is open to the court to take cognizance o f it through the parties and for it to call upon their views on it The discretion in the exercise o f revisional jurisdiction under section 4 (2) is preeminently one for the court\ it is not o f any right to the parties. Fifth , the revisional jurisdiction under section 4 (2) is not raised formally by way o f a notice o f motion and in advance o f the hearing and determination o f an appeal. The point or issue for which it is to be invoked must arise while the appeal is being adjudicated." See also Renatus Ambrose Haule v. Tanzania Railways Corporation and P.S.R.C. Civil Application No. 108 of 2004 (unreported). That said, we trust that as the point was encountered in the course of hearing an appeal, we can then confidently do something about the ruling of the High Court in terms of that section of the AJA. 13

In the same context, in this jurisdiction, where a court arrives at a conclusion or a judgment without analyzing the evidence presented in order to back its conclusion or judgment, or where the court arrives at a conclusion or judgment basing on no evidence on record to support it, the omission is an illegality hence a point of law, as per this Court's decision in CMA-CGM Tanzania Limited v. Justine Baruti, Civil Appeal No. 23 of 2020 (unreported). In such a case this Court is entitled to intervene with such a decision, in order to remove the illegality from the record even if it means to move itself provided that parties involved are given an opportunity to address the point. See this Court's decisions in Salum Mhando v. R (1993) T.R.L. 170 and Moses Muhagama Laurange v. The Government of Zanzibar, Criminal Appeal No. 17 of 2002 (unreported). Finally, in view of the above discussion, particularly as the ruling of the first appellate court was reached at without basing on any evidence, in terms of section 6 (2) of the Appellate Jurisdiction Act, the ruling of the High Court at Tabora in Labour Revision No. 25882 of 2023, is hereby nullified. V /e make no order as to costs because the appeal originated from a labour dispute. And lastly, since the impugned ruling has been

nullified, hearing or determination of the first ground of appeal, or of the preliminary objection challenging it, is of no consequence. DATED at TABORA, the 14th day of October, 2025. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 15th day of October, 2025 in the presence of Mr. Saikon Justin Nokoren, learned counsel for the appellant, Mr. Akram Magoti holding brief for Mr. Stephen Axwesso, learned counsel for the respondent and Ms. Janekisa Bukuku, Court Clerk, is hereby |rue copy of the c J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 15