Richard Nyarugenda & Others vs Airtel (T) PLC (Civil Appeal No. 428 of 2022) [2025] TZCA 831 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA, J.A.. MASOUD. 3.A. And AGATHO. J J U CIVIL APPEAL NO. 428 OF 2022 RICHARD NYARUGENDA..................................................... 1s t APPELLANT PHILIP NKUPAMA..............................................................2n dAPPELLANT MOSES BUNDARA .............................................................. 3r d APPELLANT FRANK MANASE.................................................................4th APPELLANT MICHAEL MNYABEBE ......................................................... 5th APPELLANT HENDRICK WERNER .......................................................... 6th APPELLANT LULU MASHIBA..................................................................7thAPPELLANT PASCHAL BIKOMAGU......................................................... 8th APPELLANT GEOFREY SAYORE..............................................................9th APPELLANT JAMAL MAYANJA..............................................................10th APPELLANT PETER KIMARO................................................................11th APPELLANT STEPHEN SIAO.............................................................. 12thAPPELLANT HILLARY GODFREY TARIMO............................................. 13th APPELLANT SAID KHANGANE IZADINI................................................ 14th APPELLANT RAJAB MANGARA.............................................................15th APPELLANT BRYCESON JOHN UMIRO..................................................16th APPELLANT VERSUS AIRTEL (T) PLC................................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) ( Naunvale, 3 .) dated the 6th day of July, 2021 in Labour Revision No. 192 of 2020 JUDGMENT OF THE COURT 22n d July & 7th August, 2025 MASOUD. J.A.: The appellants were employed by the respondent up to 31s t July, 2017 when their services were terminated on reason of operational requirements. They complained about the termination before the 1

Commission for Mediation and Arbitration (the CMA), alleging unfair termination. The CMA determined the matter in favour of the appellants. It found that, the appellants were unfairly terminated. It awarded them a total sum of TZS 994,686,113.2, arising from an amount of compensation which is equal to twenty-four months' salary awarded to each of the appellants. The decision of the CMA aggrieved the respondent. She successfully applied for revision before the High Court. Hence, the instant appeal by the appellants premised on two grounds which we do not have to reproduce here for reason that will become clear shortly. As we were about to commence the scheduled hearing of the appeal, Mr. Leonard Mwanamonga Haule who teamed up with Mr. Nesto Adam Mkoba for the appellants, raised a point of law which, with our leave, he argued, relying heavily on our earlier decision in National Microfinance Bank Pic vs Alice Mwamsojo [2022] TZCA 234 to drive home his submission. The learned counsel contended that, the evidence of all witnesses who testified before the CMA was not taken in accordance with the provisions of rule 19 (2) read together with rule 25 (1) of the Labour 2

Institutions (Mediation and Arbitration Guidelines) Rules, G. N. No. 67 of 2007 (the LIR). The said rules, he submitted, require that a witness should give evidence on oath administered by the Arbitrator or after his affirmation is accepted by the Arbitrator. Mr. Haule took us through the record to substantiate his argument, referring us to the testimonies of Stella Luchemba Kibacha (DW1) at page 35, Richard Bongoza Nyaregenda (PW1) at page 61, Michael Anbitus Mnyabebe (PW2) at page 89, Rajabu Said Mangara (PW3) at page 102, Hillary Godfrey Tarimo (PW4) at pages 110 and 111, and Philip Conwell Nkupama (PW5) at page 116 of the record of appeal. In so doing, Mr. Haule emphasized that, all such testimonies from all those witnesses were taken without the Arbitrator first administering oath or accepting affirmation contrary to the requirements of the law. Mr. Haule argued that what appears in the respective pages of the record is the word " Kiapd ' which has no indication whatsoever as to whether an oath was indeed administered on such witnesses or an affirmation was accepted from them by the Arbitrator as is relevant. In his view, such word " Kiapd ' is insufficient to conclude that the witnesses gave evidence on oath or after an affirmation was accepted. He concluded his submission by referring us once again to the case of 3

National Microfinance Bank PLC (supra) to support his point of view that there was no oath that was administered on the witnesses or affirmation accepted from them before they gave evidence as is required by the law. As to the way forward, he urged us to invoke our revisional power under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the ADA) and proceed to nullify the proceedings and the resultant award of the CMA. Having done so, we should also nullify the proceedings of the High Court, quash and set aside its judgment and decree which emerged from a nullity. Consequently, he submitted, we should remit the matter for retrial before the CMA. Ms. Miriam Bachuba, learned advocate representing the respondent submitted against the stance taken by Mr. Haule. Her submission was anchored on a number of arguments. One that, the fact that there is an indication of the word " Kiapd ' which literally means "an oath" or "an affirmation", it suggests that the Arbitrator administered the oath on each of those witnesses. Two, it is unlikely, she argued, that the arbitrator would have given such indication without administering an oath on all such witnesses. Three, throughout the submission by Mr. Haule, there is nothing shown at least suggesting that the appellants were prejudiced by such anomaly. Four, the manner 4

in which the testimonies of such witnesses were given after an indication of the word " Kiapd ' which literally means "an oath" or "an affirmation" is, she argued, within the fours of section 88 (4) of the ELRA which empowers an Arbitrator to conduct his proceedings in a manner he considers appropriate whilst having regard to the merits of the dispute. Five, the omission is a typical instance in which the overriding objective principle is applicable to remedy the anomaly for the interest of justice. And lastly, the authority relied on by Mr. Haule was in her view distinguishable. She reasoned that, unlike in the case at hand, the fact that there was omission to administer an oath or accept an affirmation from the witnesses was in that case not disputed. To support her submission, the learned counsel referred us to the case of Security Group (T) Limited v. Steven Gerson Kizinga [2024] TZCA 107 as to considerations to be taken into account which as a whole relate to having regard to merits of a dispute as opposed to clinging to legal technicalities. In his rejoinder, Mr. Haule reiterated his earlier submission. He, however, added that Ms. Bachuba concedes in principle that there is an anomaly in the manner in which the witnesses were allowed to give their testimonies, although she has the view that the anomaly is not fatal. Against the view taken by Ms. Bachubwa, Mr. Haule invited us to 5

note that the anomaly involved in the present instance involves evidence and violation of the law. More importantly, there is already an authority of this Court, to wit, the case of National Microfinance Bank PLC (supra) which is within the fours of the circumstances of the present case where this Court has ruled that the omission involving insertion of a word " Kiapcf ' without more is fatal as it translates to allowing witnesses to give evidence without the Arbitrator, first, administering oath or accepting affirmation from them. There is, indeed, a plethora of authorities of this Court on the issue at stake in this matter. They all pronounced the settled position of the law that failure by an Arbitrator of the CMA to administer an oath on a witness or accept an affirmation from him before such witness gives evidence is fatal and renders the proceedings a nullity. Needless to say, this position reflects, among others, the requirements of the provisions of rule 19 (2) read together with rule 25 (1) of the LIR. In a nutshell, these provisions require an arbitrator to administer oath on any person who appears to him to give evidence and places a concurrent obligation on the parties to the dispute to prove their cases on oath. In relation to the above position of the law, see for instance, amongst many, the cases of, Attu J. Myna v. Cfao Motors Tanzania 6

Limited [2022] TZCA 187; Catholic University of Health & Allied Science (CUHAS) v. Epiphania Mkunde Athanase [2020] TZCA 1890; North Mara Gold Mine Limited v. Khalid Abdallah Salum [2022] TZCA 1; Unilever Tea Tanzania Limited v. Davis Paul Chaula [2021] TZCA 760; and Iringa International School v. Elizabeth Post [2021] TZCA 496. The settled position of the law above was restated in the case of Catholic University of Health and Allied Sciences (CUHAS) (supra) wherein the Court, faced with an identical situation as it is in the instant matter, emphasized, among other things, that: Where the law makes it mandatory for a person who is a competent witness to testify on oath, the omission to do so vitiates the proceedings because it prejudices the parties' cases. We have carefully examined the record of appeal in light of the settled position of the law. In so doing, we have closely paid attention to the testimonies of DW1 at page 35, PW1 at page 61, PW2 at page 89, PW3 at page 102, PW4 at pages 110 and 111, and PW5 at page 116 of the record of appeal before us. We have, in our examination of the record bearing the testimonies of such witnesses, been mindful of the rival arguments of the learned counsel on, particularly, the issue

whether there was, indeed, failure by the Arbitrator to administer oath on the witnesses or accept an affirmation from them before they gave evidence. Whilst it is true that in respect of each of those witnesses there is an indication of the word " Kiapd ' on the record without more as correctly submitted by Mr. Haule, there is nothing on that record confirming that the Arbitrator did indeed administer oath on the witnesses or accept affirmation from them before they gave evidence. Certainly, such record does not support any conclusion other than that there was a gross failure on the part of the Arbitrator to exercise his powers in accordance with the law before the witnesses gave the evidence. Faced with akin situation as is in the present instance, this Court in the case of National Microfinance Bank PLC (supra), observed and held that: Our perusal of the record of appeal at pages 521, 533, and 551 of the record o f appeal the word "kiapo" meaning oath or affirmation feature, however, that does not prove to us if the arbitrator exercised his power, and administered an oath or accepted affirmation from those witnesses. ..... [Since] the arbitrator

did not exercise his powers and administer oaths or accept affirmations. ... the evidence of those ....witnesses was taken without compliance with the provisions o f the iaw/ hence vitiating the proceedings. In the case o f North Mara Gold Mines Ltd (supra) even though facts are different, as in that situation some o f the witnesses were sworn, and others were not The Court nullified proceedings related to only those witnesses for whom no oath was administered and left the properly administered oath and evidence intact. In the present situation, all three witnesses gave unsworn testimonies.....Since ...all gave their evidence without oath administered or affirmation accepted, that has undoubtedly vitiated the proceedings before the CMA. For not being sworn, their evidence was as good as no evidence was given. We subscribe to the above position and find that the arguments by Ms. Bachuba, with respect, cannot in the circumstances hold water. We accordingly reject them. As we subscribe to the above position of the law, we find and hold that the omission is a fatal irregularity which has vitiated the proceedings before the CMA and the subsequent proceedings before the High Court. 9

In the event, we invoke the provisions of section 4 (2) of the AJA to revise the proceedings of the CMA and those of the High Court. Consequently, we nullify the proceedings of CMA, quash and set aside the resultant award. We, similarly, nullify the proceedings of the High Court in Labour Revision No. 192 of 2020, quash and set aside the Judgement and the resultant decree thereof. As a way forward, we order the matter to be remitted to the CMA for Dispute No. CMA/KIN/R.961/17 to be heard de novo before another Arbitrator. As the appeal originates from a labour dispute, we make no order as to costs. DATED at DAR ES SALAAM this 7th day of August, 2025. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 7th day of August, 2025, in the presence of Mr. Nesto Mkoba, learned counsel for the appellants and Mr. Deogratius Tesha, learned counsel for the respondent, connected via video link, is hereby certified as a true copy of the original.