Nunu Saghaf vs China Dasheng Bank Limited (Civil Application No. 659/18 of 2023) [2025] TZCA 839 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA, J.A., MASOUD. J.A. And AGATHO. J.A.^ CIVIL APPLICATION NO. 659/18 OF 2023 NUNU SAGHAF............................................................................. APPLICANT VERSUS CHINA DASHENG BANK LIMITED ............................................. RESPONDENT (Arising from the Judgment and Decree of the High Court of Tanzania (Labour Division) at Dar es Salaam) (9-B-iYQi 3-) dated the 12th day of July, 2023 in Revision No. 442 of 2022 RULING OF THE COURT 4th & 7th August, 2025 AGATHO. 3.A.: This is an application for revision brought by the applicant, Nunu Saghaf, under Section 4(3) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019], the AJA, and Rules 48(1) & (2), 49(1), and 65(1), (2), (3), (4), & (7) of the Tanzania Court of Appeal Rules, GN No. 368 of 2009, the Rules. Previously, the Commission for Mediation and Arbitration, the CMA had found the applicant's termination by the respondent, China Dasheng Bank Limited, to be unfair and awarded her TZS 1,444,576,923 as terminal benefits. The High Court set the CMA award aside, holding that i

there was no proof of termination, and that the dispute was filed prematurely at the CMA as no final decision on termination had been made. In this revision therefore, the applicant seeks to revise and set aside the judgment and decree of the High Court of Tanzania (Labour Division) in Revision No. 442 of 2022. To set the matter in perspective, we shall briefly sketch the background. The applicant was employed by the respondent as Deputy Chief Executive Officer (Deputy CEO) on 17th May 2018. She was later appointed acting Chief Executive Officer for a three-month period, which expired on 20th April 2021. On 31s t May 2021, the respondent's Human Resources Manager, Nurdin Mwikoki (PW1), informed all staff via an email admitted as Exhibit NU2a that the organizational structure had changed, rendering the Deputy CEO position redundant. On 1s t June 2021, the acting Board Chairman emailed the applicant vide Exhibit NU2b stating that she was no longer employed as Deputy CEO as of that date. The applicant was advised to discuss potential employment as Head of Department with the new and acting CEOs, subject to Board approval. Later that day, the acting CEO directed her through an email admitted as Exhibit NU2d to hand over her duties. On 11th June 2021, the applicant filed a labour dispute at the CMA, alleging unfair termination. On 11th November 2022, the CMA ruled in her 2

favour, finding the termination to be unfair and awarded her TZS 1,444,576,923, comprising of sixty (60) months' salaries, leave pay, one month's salary in lieu of notice, and severance pay. Aggrieved by the CMA award, the respondent filed Revision No. 442 of 2022 in the High Court (Labour Division). On 12th July 2023, the High Court set aside the CMA award, holding that there was no proof of termination, and that the dispute was filed prematurely at the CMA as no final decision on termination had been made. Disgruntled, the applicant moved this Court to revise the judgment of the High Court on five grounds, whereof the last ground was entrenched in the applicant's written submission as permitted by rule 106(3)(b)(ii) of the Tanzania Court of Appeal Rules, 2009, the Rules. The following are the grounds raised for revision:

1. That the High Court erred in iaw and fact in holding that Revision No. 442 o f2022 was filed within time while it was filed on the 47th day from the date o f delivery o f the award.

2. That the High Court erred in fact in holding that there was no proof that the respondent terminated employment o f the applicant.

3. That the High Court erred in fact in holding that there was no proof that the respondent unfairly terminated employment o f the applicant.

4. That the High Court erred in fact in holding that the dispute was filed at the Commission for Mediation and Arbitration prematurely as there was no final decision on termination o f employment o f the applicant. 3

5. That the High Court Judge misapprehended the facts on termination o f employment o f the applicant and arrived at a wrong finding that the dispute was filed at the Commission for Mediation and Arbitration prematurely as there was no final decision on the termination o f the applicant's employment\ hence wrongly held that there was no proof that the respondent terminated the applicant's employment and that there was no proof that the respondent unfairly terminated the applicant's employment At the hearing, the applicant was present in person and represented by Mr. Frank Mwalongo, learned advocate. Messrs Killey Mwitasi, and Musa Ramadhan, learned advocates appeared for the respondent. At the outset, Mr. Mwalongo informed the Court that they were served with a notice of preliminary objections, and he intimated his readiness for the hearing to which Mr. Mwitasi agreed. Thus, the Court directed the parties to submit on the preliminary objections and the application. Starting with the preliminary objections, these were two: One, the application for the revision at hand challenging the judgment o f the High Court o f Tanzania-Labour Division has contravened section 58 o f the Labour Institution Act [Cap 300 R.E. 2023] for having been brought by way o f revision instead o f being brought by way o f appeal. Two, the application for revision at hand contravened the

provision o f section 58 o f the Labour Institution Act [Cap 300 R.E. 2023] which require that faulting the judgement at issue ought to be confined to points o f law only. Gladly, the parties made their rival submissions, which we will refer to in this ruling without reproducing them in verbatim. Mr. Mwitasi submitted the two preliminary objections jointly as they are anchored on section 58 of the Labour Institutions Act [Cap 300 R.E. 2023], the LIA. That section before the revised edition of the laws in 2023 was section 57. But before making head way, we noted that the second preliminary objection is somewhat misconceived because the matter at hand is revision application and not an appeal. Reverting to Mr. Mwitasi's submission on the preliminary objections, he started off with section 57 of the LIA which requires a party to come to the Court, by way of an appeal and based on point of law alone. He submitted that the case at hand is not an appeal rather it is revision. In his view, it is wrong to bring an application for revision instead of an appeal. Therefore, to him this is an appeal in disguise. He argued that the applicant supported the application with the decision of this Court in Muhimbili National Hospital v. Constantine 5

Victor John [2016] TZCA 208, which he had no issue with. He added that revision is befitting if it is within the parameters of the law. Mr. Mwitasi responded to the applicant's reliance on Patrick Magologozi Mongella v. The Board of Trustees of the Public Service Social Security Fund [2022] TZCA 216 at pages 19, 20, 22 and 23. Of interest, he referred us to page 19 of that decision where the Court held that re-appreciation or re-appraisal of the evidence on record is done on appeal not in revision. He cautioned while referring us to page 23 of the same decision that the Court is not supposed to re-evaluate evidence during revision because that is a matter for appeal. He protested the first ground for being a point of law, hence befitting appeal. On the second ground, Mr. Mwitasi remonstrated it as the applicant is inviting the Court to evaluate the evidence. In the same vein he denounced the third ground which talks about lack of proof. He, moreover, reproved the fourth ground claiming the High Court erred to hold that the dispute was filed prematurely, which is a matter of evidence. Further, the learned counsel for the respondent took issue with the fifth ground because it seeks the Court to re-evaluate evidence. In his view, here the Court cannot avoid considering the law and evaluate the evidence. In his view, these points are amenable to appeal. He thus urged the Court to strike out the application at hand for being misconceived.

Replying, Mr. Mwalongo resisted the preliminary objections contending that under section 57 of the LIA which is now section 58 any party may appeal to the Court on a point of law only. It was his contention that the section does not talk about appeal first. Instead, it requires appeal on point of law only not factual issues. According to him, section 4(3) of the AJA empowers the Court to call and revise any matter from High Court to check correctness of the findings, legality or propriety of order, decision, or regularity of the proceedings. The Court has power to satisfy itself on the correctness of the finding, order or proceedings of the High Court. He pointed out that the application at hand is mixed of points of law and facts. Mr. Mwalongo argued that if it is beyond law, then revision is appropriate recourse. To support his contention, he reminded the Court that it had dealt with the issue in Patrick Magologozi Mongella (supra) at page 20. According to Mr. Mwalongo the Court held that revision can be done to address, one, whether a finding of fact recorded by High Court (or the Labour Court) is according to the law and does not suffer from any error of law. Two, whether a finding of fact is perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous.

Probed by the Court on the scope of section 57 of Labour Institutions Act, Mr. Mwalongo submitted that the provision is restrictive that an appeal is on matters of law only. He conceded that the first ground of revision is on point of law. But he was quick to add that the LIA lacks a provision for revision. He contended that the absence of that provision does not mean that the Court cannot revise the decision of the Labour Court. He implored that revision can be done under section 4(3) of the AJA. He noted though that other laws such as Land Disputes Courts Act have a provision for revision to the Court. He submitted that the Court has provided the parameters to determine whether it is a fit matter for revision or appeal as seen on page 20 of Patrick Magologozi Mongella(supra). To him these parameters match the grounds of revision in the case at hand. He concluded that ground one on time limitation is a point of law. On ground two, the finding is based on no evidence. Ground three is like ground two. Ground four is on gross error while ground five centres on failure to evaluate evidence. Along with that Mr. Mwalongo contended that the decision of Patrick Magologozi Mongella (supra) is in the applicant's favour. He hinted that at page 22 of the same case, it discusses the question of law.

He recalled that in revision generally the tests are, one, where a party was not involved in the trial, but his interest is affected. Two, where the right of appeal has been blocked. Mr. Mwalongo reiterated that an appeal on points of fact in labour disputes has been blocked and hence a factual point can be a ground for revision under section 4(3) of the AJA. Rejoining, Mr. Mwitasi stressed that section 57 of the LIA has two ingredients that access to the Court is by appeal and on point of law only. He underlined the case of Patrick Magologozi Mongella (supra) at page 20 last sentence, that the Court concluded that matters set out therein were at the core points of law. He reminded the Court that on page 23 of the same case it held that misapprehension of evidence on record is a point of law. To dispose of the preliminary objections, we hasten to hold that the position of law is settled, that where a party has a right of appeal, the avenue for revision is closed. The purpose of this condition is to prevent the power of revision being used as an alternative to appeal. See Transport Equipment Ltd v. Devran P. Valambhia [1995] TLR 161; Halais Pro-Chemie v. Wella A.G [1996] TLR 269; Dismas Chekemba v. Issa Tanditse [2012] TZCA 453 and Felix Lendita v. Michael Long'idu [2018] TZCA 299; Fatma Hussein Shariff v. Alikhan Abdallah & Others [2021] TZCA 47.

As alluded to earlier, in the current application, the applicant is seeking revision. It was met with two preliminary objections whose bone of contention is whether the application at hand offended section 57 of the LIA. This provision of the law categorically states that appeal can be preferred to this Court from Labour Court on points of law only. Ordinarily application for revision may be entertained under two circumstances where a party has interest but was not involved in the lower court proceedings, and where there are exceptional circumstances. It is understood that in exceptional circumstances, the Court can allow revision in labour cases due to the reason that section 57 of the LIA impedes the intended appellants to appeal to the Court of appeal only on points of law. The Court in Muhimbili National Hospital's case (supra) held: "Since as stated above, the applicant could not appeal on the finding o f the Labour Court on matters o f fact, the applicant has properly invoked the revisionaijurisdiction o f the Court by filing this application for revision". In the above decision the Court held that specific conditions under section 57 of the LIA made revision possible. The first right of an aggrieved party in Labour revision at High court is to appeal to the Court

on points of law, any divergence (let say revision) must be with exceptional reason. A distinction of appeal and revision was well elaborated by the Court in J.H. Komba Esq Ex-Employee, E.A. Community v. The Regional Revenue Officer Sub-Treasury and Another [2005] T7CA 176 when it stated: 'We may add that a revision is at the discretion of the Court \ whereas an appeal is an aggrieved party's right subject o f course to a number o f other factors like limitation or leave or a certificate, as the case may be". With the above backdrop, we now examine the substance of the preliminary objections in line with the submissions made. We have interrogated ground one of revision about time limitation, that is the time of filing revision at the High court premised under section 91 of Employment and Labour Relation Act [Cap. 366 R.E. 2023], and Judicature and Application of Laws (Electronic Filling Rules), G.N. No. 148 of 2018. Admittedly, that is a matter of law that can be fully accommodated by section 57 of the LIA. It is notable that the applicant's counsel conceded to this fact. We thus conclude here that the first ground

is amenable to appeal under section 57 of the LIA. Revision was therefore a wrong route. We sustain the preliminary objection to that extent. Gauging grounds two and four of revision against the preliminary objections that these are points of law, evidence or both. A complaint was made in respect of the High Court's failure in which it found that the applicant was not terminated and hence the matter was instituted prematurely. Essentially, this is about rule 10(1) of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No. 64 of 2007 which provides thirty-days limitation period for lodging an unfair termination claim, from the date of the final decision to terminate the employee. To some extent this is a point of law. Moreover, the complaint of the applicant on these two grounds is that there was no proof to support the High Court's findings. Meaning the High Court decision was reached without proof. Without sugarcoating that is a point of law as held in Patrick Magologozi Mongella's case (supra) at pages 20-21. Also, the same case on page 22 cited Kilombero Sugar Company Limited v Commissioner General (TRA), Civil Appeal No. 14 of 2007 (unreported). For that reason, grounds two and four are grounds of appeal under section 57 of the LIA. Regrettably, section 4(3) of the AJA cannot be invoked. 12

Advancing ground three, the applicant complains that the High Court erred in finding that there was no proof that the respondent unfairly terminated employment of the Applicant. That also centers on evaluation of evidence. It is linked with 5th ground in which the High Court is accused of misapprehending the facts on termination of employment of the applicant and arrived at a wrong finding. In Patrick Magologozi Mongella (supra) at page 23 we held that if a complaint is that a decision of the High Court is unsupported by evidence or where the judge misapprehended the evidence on record then these complaints raise questions of law which ought to have been challenged in an appeal as per the dictates of section 57 of the LIA. The issue of unfair termination is covered under section 37 and 38 of the Employment and Labour Relations Act, thus a point of law. Therefore, all grounds of revision could have been accommodated under Section 57 of the LIA. Thus, there is no exceptionality of this revision. All said and done, it is trite law that revision is not an alternative to appeal and can only be used in exceptional circumstances like where there is no room to appeal or where appeal is blocked by legal procedure. If that is not upheld there is risk that aggrieved parties by the High Court decisions in Labour revisions may come to the Court to challenge them on

matters of law and fact through revision as observed in Tanzania Game Trackers Limited v. Bryan Priestley [2023] TZCA 17569. In the upshot, we sustain the preliminary objections and hold that the applicant ought to have preferred an appeal pursuant to section 57 of the HA as the grounds raised are not amenable to revision. Consequently, the application is misconceived and incompetent before us, we proceed to strike it out. We make no order as to costs. DATED at DAR ES SALAAM this 6th day of August 2025. Ruling delivered this 7th day of August, 2025 in the presence of Mr. Frank Mwilongo, learned counsel for the Applicant and Mr. Killey Mwitasi, learned counsel for the Respondent, connected via video Link is hereby certified as a true copy of the original. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL