Regina Moshi vs Board of Trustees National Social Security Fund (NSSF) & Another (Civil Appeal No. 100 of 2023) [2025] TZCA 962 (12 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KOROSSO, J.A., MAKUNGU. J.A.. And RUMANYIKA J.A.^ CIVIL APPEAL NO. 100 OF 2023 REGINA MOSHI .................... . ...........................................................APPELLANT VERSUS THE BOARD OF TRUSTEES NATIONAL SOCIAL SECURITY FUND (NSSF) ...................... ...................... I^ t RESPONDENT THE HON. ATTORNEY G EN ER AL................................................2 nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (Labour Division) at Dar es Salaam) fWambura. 3.^ Dated the 30th day of August2019 in Revision No, 730 of 2018 JUDGMENT OF THE COURT 4th August & 12th September, 2025 MAKUNGU, JA.: This appeal originates from the decision of the High Court of Tanzania (Labour Division) at Dar-es-Salaam (Wambura, J.) in Labour Revision No. 730 of 2018 dated 30th August, 2019. The revision giving rise to the impugned decision was lodged by the appellant, Regina Moshi, against the award of the Commission for Mediation and Arbitration ("the CMA") at Dar-es-Salaam in i

Labour Dispute No. CMA/DSM/ILA/R.56/14/243 between the appellant and the Board of Trustees, National Security Fund - NSSF, the respondent. Before embarking on the merit of the appeal, we find it appropriate to narrate the brief facts leading to the matter at hand. They go thus. The appellant was employed by the respondent in the capacity of an accountant on the 3rd September, 1992 until the 2n d June, 2014 when her employment came to an end on allegations of forgery of a cheque that was to be paid to the respondent's beneficiary. Dissatisfied with the termination of her employment, the appellant referred the matter to the CMA and as the mediation failed, the matter proceeded for arbitration. Upon hearing the parties, the CMA rendered an award and proceeded to dismiss the appellant's complaints solely on the ground that the appellant was fairly, procedurally and substantively terminated by the respondent. Aggrieved by the decision of the CMA, the appellant unsuccessfully lodged in the High Court, Labour Revision No. 730 of 2018, which in its ex- parte judgment dated 30th August, 2019, the High Court found no reason to have the CMA award upset and therefore dismissed the appellant's revision for want of merit. 2

Dissatisfied with the decision of the High Court, the appellant has now appealed to this Court. It is noteworthy that in a bid to have the decision overturned, the appellant had initially knocked the doors of this Court by way of revision vide Civil Application No. 457/18 of 2019, which was, however, struck out on 19th May, 2022, for being misconceived. In this appeal, the appellant lodged a memorandum of appeal containing eight grounds as follows:

1. The High Court erred in law by upholding the CMA decision that the appellant was negligent in handling cheque NO. 504848 contrary to the p a rtie s' testim onies and exhibits tendered into evidence.

2. The High Court erred in disregarding the evidence on record which clearly shows that the CMA m isapprehended the facts o f the nature o f the dispute by substituting the alleged forgery to negligence while in actual fact negligence was not part o f allegations by the respondent before the Commission and was not one o f the reasons fo r term ination advanced by the respondent.

3. The High Court erred in law by failure to fault the CMA which failed to rule that the respondent; (i) denied to supply the part o f disciplinary proceedings to the appellant, (it) failed to communicate the outcome o f the application to the appellant: (Hi) failed to avail the charge-sheet to the appellant, (iv) failed to give reasons leading to term ination and (v) failed to disclose reasons fo r term ination in term ination letter .

4. The proceedings referred to in this appeal were conducted irregularly, w ithout due regard to the law and court procedure and with apparent bias against the appellant. The tria l Judge deliberately and with bias handled proceedings by creating her own issues out o f the tabled grounds.

5. The High Court failed to hold that the act o f the respondent to initiate crim inal proceedings later follow ed by term ination, was a double jeopardy to the appellant and as a result the appellant suffered damages as pleaded under CMAF-I lodged a t the Commission for M ediation and Arbitration (the CM A).

6. In the absence o f the actual p roo f that the appellant did forge cheque No. 5 0 4 8 4 8 the High Court failed to hold that the burden on forgery o f cheque lie s with the respondent and due to her failure, the term ination by the respondent based on unfair reason.

7. In the absence o f the uncontested p roo f that the cheque subject o f forgery was dosed one and actually was directly handed to the beneficiary, the High Court erred by failure to hold that the appellant did not accom pany beneficiary to the bank to influence the im m ediate paym ent

8. The High Court erred by condemning the appellant unheard by reaching to the conclusion that the reliefs sought by the appellant under CMA F-I was not done in good faith, a total departure from CMA findings and respondent adduced testimony.

When the appeal was called on for hearing before us on 23rd July, 2025, the appellant was represented by Mr. Silivanus Mayenga, learned advocate; whereas the respondents had the services of Mr. Karim Rashid, learned Senior State Attorney assisted by Ms. Selina Kapange and Mr. Mkama Musalama, leanred State Attorneys. Before the commencement of the hearing on merit, Mr. Rashid raised a concern that grounds 1, 2, 3, 6 and 7 were factual, not point of law to meet the requirement of section 57 of the Labour Institution Act, Cap. 300 R.E 2019. Based on that concern, he prayed the appeal to be dismissed. On the other hand, Mr. Mayenga conceded that those grounds were factual but the remaining grounds were points of law and the Court should proceed with the hearing. However, he prayed leave of the Court under rule 111 of the Tanzania Court of Appeal Rules, 2009 (the Rules) to amend the memorandum of appeal. As Mr. Rashid had no objection to Mr. Mayenga's prayer, we were constrained to grant the unopposed prayer. The hearing was consequently adjourned to 4th August, 2025. At the resumed hearing on 4th August, 2025, the appellant was represented by Mr. Mayenga, learned counsel, whereas the respondents enjoyed the services of Mr. Karim Rashid, learned Senior State Attorney

assisted by Mr. Mkama Musalama and Ms. Lucy Kimaryo, both learned State Attorneys. At the outset, Mr. Mayenga informed the Court that on 28th July, 2025 he filed the amended grounds of appeal whereby grounds 1, 2, 3, 6 and 7 will be reduced in two grounds and will read as follows: "1. That the Honorable tria l Judge erred In law in affirm ing the CMA award on reasons leading to term ination o f the appellant without reassessing and re-evaluating evidence in term s o f section 91(2) and (4) now section 92(2) and (4) o f the Employment and Labour Relations Act, Cap 336 R.E o f2023. 2. That the Honourable Judge erred in law by holding that the term ination o f appellant contract was valid as per the procedure provided by the iaw. ” Mr. Mayenga further informed the Court that grounds 4,5 and 8 remain as in the memorandum of appeal. Since Mr. Rashid had no objection to that amendment, we proceeded with the hearing of the appeal. Mr, Mayenga commenced his submission by adopting his written submission filed in support of the appeal in relation to grounds 4, 5 and 8. He then briefly submitted that those grounds had been well articulated in the 6

written submission and had nothing to add. He then highlighted the two grounds which were not in the written submission. In relation to the 1st ground that the High Court Judge erred in affirming the CMA award without reassessing and re-evaluating evidence, Mr. Mayenga argued that, the role of the High Court, in revision, should have been to exercise its wider jurisdiction on each matter within the boundaries of the law and proceeded to re-evaluate and re-assess the evidence, in terms of section 91(2) and (4) of the ELRA. The learned counsel further stated that the enabling provision for the impugned application before the High Court was section 91(2) of the ELRA, and this notwithstanding that the provision governs a process of revision, the High Court is mandated to go beyond revisionary power and in the interest of justice impute therefrom some appellate functions under section 91(4) of ELRA. He argued that, the High Court failed to find that the evidence before the CMA was on forgery of a cheque done by the appellant but the reason for termination was negligence of the appellant He argued further that the High Court failed to find out that the CMA had no mandate to deal with the issue of forgery because it is a criminal matter, thus he asked why the reason for termination changed to negligence which was not addressed in the evidence.

To support his argument, he cited to us the case of Eric Zablon v. Offgrid Electric Tanzania Ltd (Civil Appeal No. 307 of 2022[2025] TZCA 135. Regarding the 2n d ground, Mr. Mayenga argued that the laid down procedures for termination of employment were faulted. He submitted that some of the procedures were not complied with, to wit; there was no formal charge that was presented to the appellant for her to prepare for the hearing. That the record is silent as to whether the appellant was given the opportunity to put forward mitigating factors upon being found guilty, failure of the respondent to disclose reasons for termination in the termination letter, and worse enough the appellant was condemned unheard as the respective disciplinary proceedings does not indicate that the appellant was also given the opportunity to respond to the allegation before the Disciplinary Committee. The learned counsel argued further that as a second court in the process of the determination of the appellant's grievances, the Court cannot step into the shoes of the CMA since the High Court failed to do so. He thus prayed for us to invoke revisional power under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 (the AJA), to nullify the decision of the High Court and that of the CMA and remit the case file to the CMA for the case to be heard and 8

determined properly or to allow the appeal as prayed at page 8 of the record of appeal. In response, Mr. Rashid, in the first place, adopted the written submission in reply lodged on 17th May, 2023 under rule 106 (7) of the Rules and contended that the High Court Judge was right as there is no basis upon which to fault her. On the 4th ground of appeal, the learned Senior State Attorney argued that the High Court determined the revision dependant on the submission of the appellant. Therefore, there was no new issue raised by the Judge, he added. It was submitted that before the triai commenced at the CMA, parties were aware of the issues to be addressed. As regards the 5th ground of appeal which is about the respondent, first initiating criminal proceedings, followed by the appellant's termination was double jeopardy to the appellant, Mr. Rashid replied that the award was informed by issues which were framed and the issues are well captured as appearing at page 36 of the record of appeal. It was his submission that this ground was not one of the issues which was raised and framed for determined by the CMA. He further submitted that the issue of double jeopardy does not arise on the CMA's award.

On the 8th ground of appeal, Mr. Rashid replied that granting reliefs to the parties was to be informed by the proceedings. He pointed out that as regards the reliefs which the appellant's sought at the CMA based on the CMA FI at pages 11 to 17 of the record of appeal are not the same to those which the appellant sought in revision at the High Court. He contended that in arriving to the decision to decline awarding reliefs sought, the Judge at page 322 of the record of appeal reasoned, among others, that the claim for compensation was not done in good faith. That statement was an orbiter which is not part of the decision, and to support his point, Mr. Rashid relied on our previous decision in Mwananchi Communication Ltd v. New Habari (2006) Limited, (Civil Application No. 61/68 of 2017) [2020] TZCA 193. On the 1st ground of appeal Mr. Musalama chipped in and argued that the role to re-evaluate the evidence based on what were testified and documents tendered before the CMA was the reverse of the High Court in exercise of its revisional power under section 91 of the ELRA. He argued further that since the High Court upheld the CMA award it is not necessary to make re-assessment of evidence of the CMA. On the authority relied upon by the appellant's counsel, the learned counsel submitted that, that case is 10

distinguishable on the ground that the award in the instant case was upheld but in the former case the award was reversed. On the appellant's argument that the charges levelled against her was forgery and not negligence and therefore the findings of the CMA and the High Court were not correct, the learned State Attorney submitted that the CMA was interested in establishing whether the 1st respondent had reasonable cause to terminate the appellant and whether the 1st respondent had complied with the procedure when terminating the appellant. However, upon being probed by the Court on whether the CMA had the jurisdiction to entertain the issue of forgery, Mr. Musalama admitted that the CMA has no mandate to entertain a criminal charge. This omission, he argued, was irregular and vitiated the proceedings. As regards the 2n d ground of appeal, the learned State Attorney argued that the procedure was followed. The 1st respondent complied with all laid down procedures of the termination of the appellant. The Reason for the termination was provided in the termination letter which was received on 9th October, 2014. He urged us to dismiss the appeal or to remit the file to the CMA for re- hearing of the dispute. ii

Mr. Mayenga submitted in rejoinder that the CMA misapprehended the facts of the nature of the dispute by substituting the alleged forgery to negligence while in actual fact negligence was not part of allegations by the respondent before the CMA and was not one of the reasons for termination advanced by the respondent. He insisted that the criminal charge against the appellant in the District Court of Temeke which was later withdrawn by the Republic was the same charge brought before the Disciplinary Committee which the CMA had no mandate to deal with it. We have read the counsels' written and oral submissions for and against the appeal, authorities cited and the record of appeal. The main issue for our consideration, we think, is whether the charge levelled against the appellant before the CMA was proper or not. Beginning with the complaint in the 1st ground of appeal, Mr. Mayenga essentially contended that the alleged forgery of cheque No: 504848 and later substituted to negligence as a reason for the termination was unfounded and unacceptable. Elaborating, he argued that as the said allegation substantially constituted the criminal charge against the appellant, the CMA had no mandate to deai with it. That, there were no valid reasons for the appellant's termination from her employment contract. 12

Conversely, Mr. Musalama supported the High Court finding which upheld the CM A award that the alleged forgery constituted a valid reason for the termination. He argued that the CMA was interested to establish whether the 1st respondent had reasonable cause to terminate the appellant. The CMA was satisfied with the evidence presented before it and substituted the finding of forgery to negligence which constituted an act of gross dishonesty for which termination is justifiable pursuant to rule 12(3) (a) of the Labour Relations, (Code of Good Practice) Rules, 2007 (GN No. 42 of 2007) includes among other things, dishonesty which is relevant to the case at hand. According to the record of appeal, in particular the evidence of DW1 (Dorice Nangai) and DW2 (Anna Malimi), the appellant was terminated from her employment for reasons of being involved in the forgery of a cheque that was to be paid by the 1st respondent to her member. In a bid to justify the termination, the two witnesses informed the CMA that, on 28thFebruary, 2008, the appellant accompanied by one Charles Ndyetabula, went to the CRDB Bank, Temeke Branch, and handed over the cheque, which was altered. From the foregoing, it is our fortified view that the whole evidence put forward is in support of the allegations of forgery against the appellant but

the reason for termination given by the CMA was negligence which was not part of the evidence. Having taken a long took at the facts of the case and considered the contending submissions, we are persuaded by Mr. Mayenga submission that the leaned Judge erred in affirming the CMA award on reasons leading to termination of the appellant without re-assessing and re-evaluating evidence in terms of section 91 (1) and (4) of the ELRA. On page 322 of the record of appeal, the learned Judge states: "I believe CMA was right because it is not disputed that the applicant was negligent../' [Empasis added] The observation reproduced above led the High Court to affirm the proceedings and award of the CMA. It is clear to us that, the findings of the learned Judge were and remain self importing reasoning back up with no proof. The evidence on record clearly shows that the CMA misapprehended the facts of the nature of the dispute by substituting the alleged forgery to negligence while in actual fact negligence was not part of allegation by the respondent before the CMA and was not one of the reasons for termination advanced by the respondent. The High Court should have re-evaluated and 14

re-assessed the evidence adduced in the CMA, We, therefore, find the proceedings of the CMA were nullity. In the same vein, we Having taken a long look at the facts of the case and considered the contending submissions, we are persuaded by Mr. Mayenga that the appellant was not charged properly before the CMA and therefore the hearing was a nullity as it was an excercise in vain. In the same vein, we entertain no doubt that the anomaly vitiated the proceedings of the High Court thus rendering them a nullity. Having so found, we find the 1st ground of appeal suffice to dispose of the appeal in the light of the obtaining circumstances and for that matter, we need not be labour the other grounds which were raised in the memorandum of appeal. It follows therefore, that, having looked at the totality of the proceedings both at the CMA and the High Court, we are inclined to invoke our revisional powers under section 4(2) of the AJA and nullify the proceedings of the CMA and its award in Labour Dispute No. CMA/DSM/ILA/R.56/14/243 and the High Court proceedings and its Ex-perte judgment in Labour Revision No. 730 of 2018. Having nullified the impugned proceedings and judgments, 15

we remit the record to the CMA for hearing of the matter afresh before another arbitrator. As the appeal emanates from labour dispute, we order that each party should bear its own costs. DATED at DODOMA this 8th day of September, 2025. W. B. KOROSSO JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 12th day of September, 2025, in the presence of Mr. Sylvanus Mayenga, learned counsel for the Appellant, Mr. Mkama Musalama, learned State Attorney for the Respondent through Teleconferencing and Ms. Jasmin Kazi, Court Clerk is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL f i f e 16