Anderson African Adventures Ltd vs Yared James Mlambo & Others (Civil Appeal No. 91 of 2022) [2025] TZCA 908 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MKUYE, J.A.. KAIRO, J.A.. And ISSA. J J U CIVIL APPEAL NO. 91 OF 2022 ANDERSON AFRICAN ADVENTURES L T D .................................... APPELLANT VERSUS YARED JAMES MLAMBO &15 OTHERS .................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Arusha) (Massara, J.l dated the 4th day of February, 2022 in Labour Revision No. 58 of 2018 RULING OF THE COURT 28th July & 29th August, 2025 KAIRO, J.A.: The appellant, Ms. Anderson African Adventures l t d , is contesting the decision of the High Court of Tanzania, Labour Division at Arusha in Revision Application No. 58 of 2018 which set aside the award given by the Commission for Mediation and Arbitration (the CMA). The High Court further ordered the respondents to be paid 12 months salaries each for unlawful termination. A background to the controversy between the parties as gleaned from the record of appeal is as follows:- The respondents who claimed i

to be employed by the appellant instituted a claim against the appellant for unfair termination. The appellant denied the allegation claiming that, the respondents have never been her employees, rather were freelance drivers who were being hired for tourists' safaris during high seasons. Further that, the respondents were being contracted and paid for each safari which upon its completion, their relationships with the appellant lapsed. After hearing the parties' evidence, the CMA found that, the respondents were under specific employment contract which ends after completion of the specific task assigned to each one of them. The CMA therefore, dismissed their complaints. Being aggrieved by the CMA decision, the respondents applied for revision to the High Court Labour Division at Arusha which reversed the decision as alluded to above. Hence, this appeal by the appellant fronting eight grounds. We wish to put it clear that, the parties submitted their arguments for and against in all of the grounds, but we think, the issue the Court raised suo motu suffices to dispose of this appeal. As such, we do not see the need to proceed with the analysis of the grounds raised. On that account, we shall not reproduce them as they serve no purpose in the circumstances of this case.

When the appeal was called on for hearing, Messrs. Gwakisa Kakusulo Sambo and Samwel Gard Madulanga, represented the appellant and respondents respectively. Before proceeding with the appeal, the Court suo motu wanted to be addressed on whether the first respondent was mandated to represent the rest of the employees in the wake of the CMA Form No. 1 (Form No. 1) filed at the CMA. Mr. Sambo's answer was straight away in the negative. In elaboration, he submitted that, Form No. 1 appearing at page 1 through 16 of the record of appeal offends rule 5 (2) and (3) of the Labour Institutions (Mediation and Arbitration) Rules 2007, (GN. No. 64 of 2007). He argued that, the said form and its attachment does not contain any instrument or document that permits the 1s t respondent (Yared Mlambo) to sign or appear and represent the rest of the employees in this matter. To substantiate his argument, he referred us to page 3 of the record of appeal under item 4 which according to him states that the attachment appearing at page 7 up to 16 displays the amount each claimant is to be paid in the circumstances the mediation process would succeed. In this regard, he argued, the attachment therein did not give any mandate to the 1s t respondent to sign the documents on behalf of the other employees or represent them. He

invited the Court to go through it to verify his contention. Instead, he went on to argue that, the attachment explains the amount each of the employee purports to claim. Thus, the CMA Form No. 1 the respondents purport to rely on did not comply with the conditions stipulated in rule 5 (2) and (3) of GN. No. 64 of 2007. In his further submission, Mr. Sambo stated that, his arguments are also supported by the 1s t respondent himself who testified as PW4. He elaborated that, during cross examination, he was asked by Mr. Sambo at page 976 of the record of appeal as to where in the CMA Form No. 1 was he permitted to represent others and he answered "no". According to him, the said answer confirms that, even the 1s t respondent himself was aware that, he did not have the mandate to represent other employees. He added that, the absence of the said authorization has rendered the proceedings at the CMA together with its subsequent orders a nullity. Likewise, the proceedings at the High Court and the resultant decision, having stemmed from nullity proceedings. To substantiate his arguments, he cited to us the case of Mkurugenzi Orion Tabora Hotel vs Savourgnan William Sosoma and 19 Others, [2025] TZCA 664 TANZLII. That apart, contended Mr. Sambo, the record of appeal shows that, only the 1s t, 6th and 16th respondents testified to substantiate their 4

claims. Yet, the award pronounced by the High Court, benefited all, which he argued to be inappropriate. In conclusion, he beseeched the Court to invoke its revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2023 (the AJA) and quash all of the nullity proceedings and the subsequent decisions reached by both the CMA and the High Court and further order that, any party who wishes to refer the dispute afresh to the CMA, to do so in accordance with the law. In his reply, Mr. Madulanga was of the firm view that, Form No. 1 complied with the requirement stipulated under rule 5 (2) and (3) of GN. No. 64/2007 on how to institute a collective claim at the CMA. He went on elaborating that, the requirement as per the provision at issue is the presence of the list of the names of all the persons to be represented in writing and the name of the person representing them. He went on submitting that, the said list has to be signed by the employees concerned whose names appear in it and the same be attached to Form No.l. It was his argument that, both requirements have been met in the case at hand. Mr. Madulanga went on submitting that, the CMA Form No. 1 appearing at pages 1 to 4 clearly stipulates the claimants to be " Yared Mlambo & others" He referred us to page 2 of the record of appeal

under Part 1 (a) for verification. He further contended that, Form No. 1 at page 3 of the record of appeal under Part 3 proceeds to direct "see the dttdchment" which according to him, the said attachment contains the list of the employees annexed to Form No. 1. He insisted that, by stating in the form that the referred claimants are "Yared Mlambo & others'7 means the employees whose list was as per the attachment therein. Thus, according to him the provisions of rule 5 (2) and (3) of GN No. 64 of 2007 were complied with. Distinguishing the cited case of Mkurugenzi Orion Tabora Hotel (supra) with the one at hand, Mr. Madulanga argued that, Form No.l in this case signifies plurality nature of the employees as opposed Form No. 1 in the cited case where it was only the 1s t respondent who was referred to therein. Taking his argument further as regards the plurality nature in the case at hand, Mr. Madulanga submitted that, paragraph 4 of Form No. 1 in the cited case signifies that the 1s t respondent instituted the dispute in his personal capacity as verified under the heading OUTCOME OF MEDIATION wherein he filled " to be paid my all entitled terminal benefits" while in the case at hand under the same paragraph it was filled "TO BE PAID AS PER ATTACHMENT TO THIS FORM" which he argued denotes plurality nature and even the 1s t respondent's claim has

been included. Besides, he argued, in the cited case there was no list of employees in writing attached to Form No. 1 mandating the 1s t respondent to represent them, while in the case at hand the list containing the names and signatures of the employees was attached to Form No. 1 as required. He therefore concluded that, the cited case is not relevant to the case at hand. Reacting to Mr. Sambo's argument that, even the 1s t respondent had conceded to have no mandate to represent the others when cross examined, Mr. Madulanga associated the negative answer of the 1s t respondent with the probable poor comprehension of the question asked adding that, the answer did not change the fact that the list containing the names and signatures of the employees was attached and formed part of Form No. 1. Fie maintained that, the provision at issue simply requires the presence of a list of names and signatures attached to Form No. 1 but did not prescribe the format of the said list or how should it look like. Concluding, Mr. Madulanga argued that, as far as the respondents are concerned, the list attached to Form No. 1 sufficed and served the purpose of rule 5 (2) and (3) of GN. No. 64 of 2007. When probed by the Court as to who the 1s t respondent was giving the representation mandate to, since his name is also included in the said attachment, Mr. Madulanga answered that, Form No.l apart

from giving mandate, it also contains other particulars including the amount claimed by the respective employees and that is why according to him, the 1s t respondent's name is inclusive in it. When further probed if the explanations he gave are inthe Form No. 1 as well, the learned counsel answered in thenegative. Flaving heard the rival arguments by the counsel for theparties, the issue for our determination is whether or not the 1s t respondent was mandated under Form No. 1 to represent other employees in the case at hand. It is a common ground that, the dispute was instituted by Yared Mlambo, the 1s t respondent, on behalf of his fellow employees. Essentially, section 86 (1) of the Employment and Labour Relations Act Cap 366 (the ELRA) provides that, any dispute to be referred to the CMA is required to be in the prescribed form. The said form which is titled "REFERAL OF A DISPUTE TO THE COMMISSION FOR MEDIATION AND ARBITRATION" (FORM NO 1) is provided in the Third Schedule to the Employment and Labour Relations (General) Regulations 2017 (GN No. 45 of 2017). It serves the purpose of offering guidance to the claimants by filling into the form the requested information as regards the complainant's personal particulars, nature of the dispute and the expected outcome of the dispute on mediation.

As alluded to before, the dispute in the matter at hand signifies that, the same is a collective dispute as it entails more than one employees. Despite of filling Form No. 1 in case of dispute, the law under rule 5 (2) and (3) of GN. No. 64 of 2007 provides on how to deal with a such a dispute where it states:- "(2) Where proceedings are jointly instituted or opposed by more than one employees, documents may be signed by an employee who is mandated by the other employees to do so . (3) Subject to subrule ( 2 ), a list in writing o f the employees who have mandated a particular employee to sign on their behalf, must be attached to the document The list must be signed by the employees whose names appear on it." [Emphasis added]. In our interpretation, the provisions sanction an employee who is permitted by other employees to refer a joint dispute either as a claimant or respondent, to sign the documents on their behalf provided there is a list in writing of the employees authorizing the representing employee to do so. The provision further provide for a mandatory requirement for the said list to be signed by each of the employees represented and to attach the same to Form No. 1.

In the matter at hand, the parties locked horns on whether Form No.l has complied with the mandatory conditions above as far as authorizing the 1s t respondent to sign the documents on behalf of 15 other employees who jointly instituted a dispute at the CMA is concerned. The appellant argues that, it was not, while the respondent is of an opposing view. It was Mr. Madulanga's argument that Form No.l is attached with the list of employees involved in the dispute showing their names and signatures which according to him is sufficient for the purpose of rule 5 (2) and (3) of GN. No 64 of 2007. However, with much respect, we do not buy his argument. For ease of reference on the discussion to follow, we let the excerpt of the 1s t respondent who is one of the employees whose particulars were attached to Form No. 1, to speak for itself: - "NAME OF THE EMPLOYEE: YARED JAMES MLAMBO ADRESS: P.O. BOX 10313, ARUSHA - TANZANIA PHYSICAL ADDRESS: PHONE: +255 787987 605 Email: DATE OF EMPLOYMENT: NOVEMBER, 2009 DA TE OF TERMINA TION: 26™ SEPTEMBER, 2014 SIGNATURE: Sgd CLAIMS: v . 18 months salary compensations for unlawful termination = Tshs. 16,200,000.00/= 10

vi. Unpaid annual leave - Tshs. 900,000.00 x 5 years-Tshs. 4,50,000.00/= vii. Severance payment = 210,000.00 x 5 = Tshs. 1,050,000.00/= viii. NSSF (10%) = 504,000,00 x 5 years = Tshs. 2,520,000/=" Subjecting the excerpt to the requirements under rule 5 (2) and (3) of GN. No 64 of 2007, we think, Mr. Madulanga's argument is not supported by the explanation in the referred list. In our view, the question is not whether there is a list of names attached to Form Nol, rather is whether the said list has given the mandate to the 1s t respondent to sign the documents on their behalf, to which our answer is in the negative. It is imperative to note that, the information given by the rest of the employees are similar save that, they are customized depending on the particulars of each. Our thorough scrutiny of the said list we observed that, the list referred gives explanation on the total amount each of the employee claims from the appellant and not permitting the 1s t respondent to sign on their behalf or represent them as submitted by Mr. Madulanga. Our observation is further strengthened by item 4 under Form No. 1 titled OUTCOME OF MEDIATION against which it was filled "7(9 BE PAID AS PER A TTACHMENT TO THIS FORM'. li

It is noteworthy that, the said attachment refer to the employees' claims and not mandate to represent them. Besides, at page 3 of the record of appeal item 3 in Form No. 1 solicits information on the amount owed by the employee and the words filled against it states "SEE ATTACFIMENT". Holistic reading Form No. 1 and the attachment depicts that, the list refers to the names of the employees and the reliefs claimed by each and does not confer any representation mandate to anybody. In that regard, the purported list or attachment is not the one envisaged under rule 5 (2) and (3) of GN. No. 64 of 2007 with due respect to Mr. Madulanga. As if that was not enough, we also wonder if the attachment to Form No. 1 was giving mandate to 1s t respondent, why Yared Mlambo was included in the list as well? To whom was he giving the mandate to sign documents on his behalf being a person representing the rest? When probed by the Court on this issue, Mr. Madulanga replied that, Form No.l also included other particulars like the amount claimed by the respective employees. However, when further probed as to whether Form No. 1 mentioned anything to do with giving mandate, the learned counsel gave a negative answer which further intensify our finding that, the main purpose of the list attached to Form No. 1 is to 12

explain the amount each one of them claims and not for giving mandate to the 1s t respondent. Further to that and as correctly argued by Mr. Sambo, even the 1s t respondent himself was categorical that nowhere in Form No. 1 was it indicated that other employees permitted him to represent the respondents in this dispute. Though Mr. Madulanga associated the denial with the failure to understand the question asked, but in our view, the question was too straight to misunderstand it. In fine, we agree with Mr. Sambo that the dispute was instituted at the CMA un-procedurally as the 1s t respondent was not permitted by other respondents and in the absence of said mandate, rule 5 (2) and (3) of the G.N. No. 64 of 2007 was not complied with. As a way forward for the non-compliance, the case of Mkurugenzi Orion Tabora Hotel (supra) serves as a guidance as correctly submitted by Mr. Sambo. Consequently, we nullify the proceedings at the CMA and the resultant decision. In the same vein, the proceedings at the High Court and its subsequent decision are hereby nullified, having stemmed from nullity proceedings. We are therefore constrained to quash the proceedings from the CMA to the ruling of the High Court Labour Revision No. 58 of 2018 together with the subsequent decisions pursuant to section 6 (2) of the Appellate 13

Jurisdiction Act, Cap 141 R.E. 2023 and order that, any party if so, wishes may refer the dispute afresh to the CMA in accordance with the law. This being a labour matter, no costs is awarded. DATED at DODOMA this 28th day of August, 2025. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Ruling delivered this 29th day of August, 2025 in the presence of Mr. Samwel Madulanga, learned Counsel for the Respondents and also holding brief for Mr. Gwakisa Sambo, learned Counsel for the Appellant, via virtual Court and Mr. Oscar Msaki, Court Clerk; is hereby certified as .a true copy of the original. y .— ^ R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 14