Joseph Magata vs Vodacom (T) Limited (Civil Appeal No. 409 of 2022) [2025] TZCA 951 (9 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWANDAMBO, J.A.. KHAMIS, J,A. And MLACHA. 3.A.) CIVIL APPEAL NO. 409 OF 2022 JOSEPH MAGATA.............. ......................................................... APPELLANT VERSUS VODACOM (T) LIMITED...........................................................RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, Labour Division at Dar es Salaam) fMaahimbi. 3 .^ dated the 27th day of June, 2022 in Miscellaneous Labour Application No. 433 of 2018 JUDGMENT OF THE COURT 23rd June & 9th September, 2025 MWANDAMBO, 3.A.: The issue for our determination in this appeal turns on the tenability of the application for review from the decision of the High Court (Labour Division) in which, Nyerere, J sustained an application for revision by the respondent and quashed an award made by the Commission for Mediation and Arbitration (the CMA) which had found the appellant's termination from employment to be unfair. The facts giving rise to the application are hardly in dispute between the parties as will become apparent shortly.

Briefly, until his termination on 25 March, 2015, the appellant was an employee of the respondent. In the course of that relationship, the respondent suspected the appellant of several misconducts which triggered a disciplinary hearing on five different counts in the disciplinary charge. At the end of the disciplinary hearing, the appellant was found guilty on three counts including absence from work for more than five days at different intervals without prior approval from his manager. He was accordingly terminated for misconduct but he successfully challenged the termination at the CMA for Kinondoni which found that the respondent failed to prove that the termination was upon a valid and fair reason. It thus ordered the respondent to reinstate the appellant without loss of benefits. Aggrieved, the respondent challenged the CMA's award before the Labour Court for revision on five grounds. Out of the said grounds, the Labour Court (Nyerere, J) found only one ground warranting revision of the CMA award namely; absence from work for five days which the CMA found to have been sufficiently proved by the respondent constituting a valid reason for termination. It thus reversed and quashed the CMA's award. It is remarkable that, although Nyerere, J indulged herself into procedural aspects of the termination on which there was no complaint

by the respondent, the decree appearing at pages 168 through 170 of the record of appeal shows that the CMA's award was quashed for erroneously finding that, the respondent had no valid reason for terminating the appellant. Instead of exercising his right of appeal, the appellant preferred a discretionary remedy under rule 27 (1), (2), 27 (4)

• (9) of the Labour Court Rules ("the LC Rules") for review of the impugned decision on citing apparent error on the face of the record before the same court. The memorandum of review appearing at pages 196 and 197 of the record of appeal was upon ten grounds, amongst others, that the appellant could not have been absent from work on 26th and 27th March, 2015 after his termination on 25th March, 2015 which was evidence of existence of an apparent error on the face of the record. Nevertheless, guided by various decisions of the Court on what constitutes an apparent error on the face of the record in the light of rule 27(2) of the LC Rules, the Labour Court (Maghimbi, 1), took the view that, the appellant's complaint did not constitute an error warranting a review. Tine learned Judge took the view that the grounds in the memorandum of review were, but, grounds of appeal and the application was a disguised appeal beyond the scope of review. This is so considering that

what the applicant sought therein was not simply correction of an error but correctness of the impugned decision. In the end, the learned Judge dismissed the application resulting in the instant appeal. At the hearing of the appeal, the appellant appeared in person enjoying the able legal services of Mr. Deogratius Godfrey, learned advocate who also represented him before the Labour Court. The respondent for her part was represented by Mr. Luka Elingaya, learned advocate from Dentons East Africa Law Chambers resisting the appeal. Ahead of the hearing of the appeal, the learned advocate for the appellant had lodged his written submissions fallowed by a reply thereto by the respondent's counsel. They too filed formidable lists of authorities to reinforce their stand points. We are grateful for the counsel's industry but beg to be excused for our inability to refer to each of their respective arguments and authorities not out of disrespect, but because we are satisfied that, the issue for our consideration and determination revolves around a narrow compass. As hinted earlier, the appellant sought to challenge the decision of the Labour Court on eight grievances. At the Court's prompting before the commencement of hearing, Mr. Godfrey abandoned the 6th , 7th and 8th grounds and prayed to be heard on the remaining five grounds.

The first ground faults the Labour Court for not holding that since the appellant was terminated on 25 March 2015, he could not have been unlawfully absent from work on 26 and 27 March 2015. The learned advocate, contends that, as the appellant was not an employee on 26 and 27 March, 2015 on the basis on which, Nyerere J. quashed the CMA award in the application for revision. He argued that, he could not have been absent from work and and be held to be guilty of such misconduct. Mr. Godfery took a lot of pains to impress upon the Court on the date of termination in comparison with the dates shown in the decision in the application for revision as material to the impugned decision. According to him, that constituted a manifest error which went to the root of the jurisdiction of the CMA because the appellant was no longer an employee of the respondent on the dates shown to have been absent from work. To reinforce his argument that the review met the threshold of a reviewable error, counsel cited numerous authorities from commentaries including, commentaries from the celebrated works of the learned authors of Sarkar's Law o f Civil Procedure ; 11th edition by Sudipto Sarkar and V.R. Manohar and Muifa , The Code of Civil Procedure, 17th edition, Binod Mohan Prasad.

In his reply, the learned advocate for the respondent concedes existence of an error in the decision to the extent it relates to the dates of unlawful absence from work beyond the date of the appellant's termination from work. Nevertheless, counsel argues that, such an error was merely clerical which did not go to the root of the decision warranting a review. Reference was made to the Black's Law Dictionary, Bryan A. Garner 4th edition, on the distinction between a clerical error which is a common error insufficient in law to maintain an action and an error apparent on the face of the record which is so fundamental going to the foundation of the action. On the basis of the above submission, counsel implored the Court to hold that the erroneous reference to 26 and 27 March, 2015 instead of 26 and 27 February, 2015 borne out in the disciplinary proceedings at page 59 of the record and the CMA award was not a reviewable error which could have gone to the root of the impugned decision. Upon our examination of the record in the first ground we think we should not be unduly detained on this. First and foremost, the crux of the matter lies in the reference to 26 and 27 March, 2015 as among the days of absence resulting in the appellant's termination in Nyerere's judgment, subject of the review before the Labour Court. While the

appellant's advocate argues that it was a fundamental jurisdictional error warranting a review, the learned advocate for the respondent maintains that it was merely a clerical error distinct from an apparent error on the face of the record. As alluded to earlier on, Maghimbi, J treated the grounds in the memorandum of review wholesale and took the view that, essentially, grounds in an appeal challenging the correctness of Nyerere, J's decision were not fit for review hence, the decision dismissing the application for review now challenged in this appeal. It is common ground that, the letter terminating the appellant was dated 25 March, 2015 the date on which the cause of action arose according to the CMA FI. It is glaring from notice of disciplinary hearing at page 57 of the record that, the appellant was charged with absence from work from 4th - 6th , 26th - 27th February and 5th March, 2015. The record of appeal, in particular at page 133, reveals that, the respondent's advocate submitted that: "...At page 6 o f the Disciplinary Proceedings paragraph 5 the Respondent (appellant herein) confirmed that he was out o f office on 4 h to &h February on allegation that he went to see a physician and on 2&h to 27th March he said he had a breakdown o f his car and the rest o f the

dates he claimed to be working from Makame site. ..." It seems to us that the reference to 26th and 27th March 2015 as days that the appellant was absent from work in Nyerere, J's decision had a source from the respondent's submission as shown above. Be that as it may, since it is plain from the notice of disciplinary hearing at page 57 of the record, in the 3r d count, the appellant was charged with absence from work from 4th - 6th , 26th - 27th February and 5th March, 2015, the Labour Court ought to have realized the erroneous reference to 26 and 27 March, 2015 because the appellant was no longer in the respondent's employment on those days. Neither was there any disciplinary charge involving absence from work on the two dates. To that extent, treating that complaint as a disguised appeal was erroneous on the part of the court. The only issue for its decision should have been whether such an erroneous reference involved reviewable error falling under the purview of rule 27 (2) (b) of the LC Rules which stipulates: "Any person considering himself aggrieved by a judgment, decree or order from which: (a) N/a 8

(b) no appeal is allowed\ and who, from the discovery o f any new and important matter or evidence which ; after the exercise o f due diligence , was not within his knowledge or could not be produced by him at the time when the judgment or decree was passed or order madef or on account or some mistake or error apparent on the face o f the record, or for any other sufficient reason ; desires to obtain a review o f the judgment, decree or order made against him, (c) may apply for a review o f the judgment, decree or order to the Court:’ Counsel for the appellant would have us agree with him that reference to the dates after the appellant's termination was an apparent error on the face of the record which was refuted by the respondent's counsel as seen above. The law underlying review is trite from numerous decisions. In Atilio v. Mbowe [1970] HCD n. 3 referred by the Court in Mirumbe Elias @ Mwita v. Republic [2016] TZCA 275, it was aptly stated that, the principle behind review is that the court would not have acted as it did if all the circumstances had been known. Apparently, the Labour Court had regard to it In the impugned decision.

Juxtaposed to the instant appeal, the issue is whether, Nyerere, J's decision would have been different had the dates complained of (26th and 27th March 2015) not been referred to in the decision. On the authorities relied upon by the Labour Court, we agree with Mr. Elingaya that the reference to the two dates post appellant's termination was inconsequential to Nyerere, J's decision. Indeed, we are surprised by Mr. Godfrey's adamancy in his submissions insisting that the erroneous reference to the dates after the appellant's termination on 25 March 2015 as having had a bearing on the CMA's jurisdiction when, by the appellant's own referral of the dispute to the CMA vide CMA FI appearing at pages 6 - 12 of the record shows that the dispute arose on 25 March 2015. In view of the above, we are at a loss how could the appellant have been prejudiced by the mere error on the dates he was absent from work when the charge against him and the evidence at the disciplinary hearing held on 16 March 2015 is clear on the actual days of his absence. The record of appeal bears testimony at page 57 that the actual dates of his absence were 4th - 6th , 26th -27th February and 5 March 2015 against which, he defended himself before the respondent terminated him. 10

To sum up on the 1s t ground, while there is no dispute on the erroneous reference to two of the dates of absence namely; 26th and 27th March 2015 after the appellant's termination on 25 March 2015, that in itself did not constitute an error occasioning miscarriage of justice in the manner contended in the memorandum of review warranting a review under rule 27(2) (b) of the LC Rules. On the contrary, we endorse the submission by the learned advocate for the respondent that, the error in the dates was a slip of the pen which is correctable under the slip rule. Admittedly, there is no equivalent of section 96 of the Civil Procedure Code (the CPC) under the LC Rules catering for correction of clerical errors. However, there is nothing therein preventing the court from drawing inspiration from the CPC to correct the error. In the upshot, we dismiss the first ground except to the extent indicated. The 2n d and 3rdgrounds are closely connected to the 1s t ground we have already determined in the respondent's favour. They relate to absence from work which was dealt with by the Labour Court conjointly as grounds 5, 6 and 7 in the memorandum of review. The complaint in the 2n d ground is against the Labour Court failing to hold that its findings on the appellant's absence were based on non-existing documents. On the other hand, it is contended in the 3r d ground that the Labour Court wrongly declined to review its decision for not considering that there is

no legal provision for terminating employee's employment when his absence is arithmetically not more than five working days. By this ground the appellant seeks to argue that there was no evidence before the court in the application for revision proving that he was absent for more than five working days and thus sustaining the respondent's application on account of absence was wrong warranting a review. The appellant's learned counsel has submitted that both grounds before the Labour Court disclosed manifest errors which warranted a review. Specifically, the learned advocate drew our attention to the Court's decision in Constantine Victor John v. Muhimbili National Hospital [2022] T7CA 646 to argue that, where it is apparent that the days of absence do not exceed five working days, the court ought to have reviewed the impugned decision. According to the learned advocate, the appellant's absence in the instant appeal did not exceed five working days. It was thus argued that, the Labour Court should have exercised its power of review which would have resulted in reversing Nyerere, J's decision. For their part, the learned advocates for the respondent had a different view arguing that, in the first place, the complaint is misconceived the more so since it sought to determine whether the 12

Labour Court's decision in revision was based on non-existing documents. In the counsel's view, that entailed examination and analysis of the record which takes this ground away from the ambit of apparent error on the face of the record. At any date, counsel argued that, the Labour Court determined the application for review on the basis of existing documents in the record. In relation to the 3r d ground, the learned advocates submitted that the complaint was rightly dismissed by the Labour Court as its determination entailed examination of evidence to come to the conclusion that the absence was not more than five working days. Having examined the submissions by the learned advocates in the light of the complaint before the Labour Court as well as the impugned decision and mindful of our determination of the 1s t ground, we agree with the learned counsel for the respondent that the Labour Court rightly declined to review its decision on any of the grounds before it. Most importantly, none of the grounds was based on an error apparent on the face of the record without examination of evidence. As Mr. Godfrey would be aware, the application for review was anchored on the alleged apparent error on the face of the record and so, the appellant had a difficult task to surmount in order to succeed. It is significant that the Court's decision in Chandrakant Joshubai Patel v. Republic

[2004] T.L.R. 218 citing commentaries from decided cases in India discussing an equivalent provision in the Indian Code of Civil Procedure Act V of 1908 to Order XLII rule 1 of the CPC identical to rule 27 (2) (b) of the LC Rules was emphatic on what it means by a manifest error on the face of the record. The law on review is well settled to the effect that, a manifest error on the face of the record must be self-evident and easily seen by a person who is running and reading. To identify such error, one need not require examination of documents to discover it. Apparently; the appellant's grounds in that regard were all geared at inviting the court to discover the alleged errors by examining evidence on the record to review its decision which is beyond the court's power in applications for review. In view of the foregoing, except for the erroneous reference to the dates of absence, the Labour Court rightly held that the grounds of review before it but, dissatisfaction against the decision aimed at challenging its correctness which could only be done in an appeal and not in an application for review as it were. The Court rightly rejected the grounds as it did and we see no reason to interfere with its decision except to what we have stated in the 1s t ground.

Mr. Godfrey's reference to our decision in Costantine Victor John v. Muhimbili National Hospital (supra) is attractive but unhelpful to the appellant. Unlike here, the error in that case was found to have been apparent and self-evident. On the contrary, by arithmetic calculation in the instant appeal, it was established that the appellant was absent for six working days on 4th , 5th , 6th , 26th , 27th February and 5th March 2015. In the upshot, we find no merit in the 2n d and 3r d grounds of appeal and dismiss them. Next, we shall briefly deal with the 4th and 5th grounds which fault the Labour Court for failing to review its decision for dealing with termination procedures on which there was no complaint by the respondent in the revision application. However, upon close examination of the record, we do not consider it worth belabouring on the issue more than it is necessary. Admittedly, the court dealt with termination procedures which were beyond the scope of the respondent's grounds of revision. To that extent, that was not proper. However, it is plain from page 167 of the record that, Nyerere, J revised the CMA's decision on a substantive issue holding that there was a valid reason for terminating the appellant. The decree extracted from the decision says as much independent of the discussion on procedural issues. Indeed, we are unable to see how that discussion occasioned miscarriage of justice

against the appellant to have warranted a review. Consequently, we find no merit in these two grounds and dismiss them. In the event, the appeal lacks merit and we dismiss it with no order as to costs. DATED at DODOMA this 4th day of September, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 9th day of September, 2025 in the presence of Mr. Alex Myanga, learned Advocate for the Respondent also holding brief for Mr. Deogratius Godfrey, learned advocate for the Appellant via virtual Court, and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original.