SCANIA Tanzania Limited vs Romanus J. Chumi & Another (Civil Appeal No. 456 of 2022) [2025] TZCA 832 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA. J.A.. MASOUP, J.A. And AGATHO, J.A.^ CIVIL APPEAL NO. 456 OF 2022 SCANIA TANZANIA LIMITEP ...................................................... APPELLANT VERSUS ROMANUS J. CHUMI..........................................................1s t RESPONPENT PETER ABPUEL................................................................. 2n d RESPONPENT (Appeal from the Judgment and Pecree of the High Court of Tanzania, Labour Pivision at Par es Salaam) (Mteule. J.^ dated the 14th day of July, 2022 in Labour Revision No. 36 of 2021 JUDGMENT OF THE COURT 28th July & 7th August, 2025 MASOUP, J.A,: Before the Commission for Mediation and Arbitration (CMA), Romanus J. Chumi and Peter Abduel, the first and second respondents respectively filed a complaint (No. CMA/DSM/ILA/665/19/303) against their former employer, Scania Tanzania Limited (the appellant) dated 22n d August, 2019 and received by the CMA on 26th August, 2019, having retired from their service with the appellant on 1s t July, 2018 and 28th February, 2019 respectively. Their claim against the respondent was for the payment of unpaid transport costs and subsistence allowances for repatriation. i

The respondents' claim was hinged on clause 21 of the Collective Bargaining Agreement (the CBA) between the appellant on one hand and the Tanzania Union of Industrial and Commercial Workers (TUICO) for all employees employed by the said appellant on the other. The said clause has it that, retired employees are entitled to transport expenses for themselves, their spouse, up to four children, and 4000 Kilograms of personal effects. They alleged that, despite their close follow-ups which included writing letters, the appellant refused to honour her contractual obligation as per her response letters dated 16th and 18thJuly, 2019 issued to the respondents. In view of the response letters, the respondents alleged in their complaint at page 12 of the record of appeal that the dispute had arisen on 16th July, 2019, and therefore not on the respective dates of their retirement from the service. Having heard the parties, the CMA dismissed the case on the ground that it was time-barred in terms of rule 10 (2) of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No. 64 of 2007 (the LIR). In its decision, the CMA was satisfied that, the respondents' cause of action against the appellant had accrued on the respective dates of the respondents' retirement dates which were on 1s t July, 2018 for the first respondent and on 28th February, 2019 for the second respondent. Thus, having filed the complaint dated 22n d August, 2019 which was, according

to the record before us received by the CMA on 26th August, 2019, far beyond the 60 days7 time limitation under rule 10 (2) of the LIR, the dispute was clearly, according to the CMA, out of time and therefore time barred. It was thus dismissed. The respondents sought revision of the CMA's decision in the High Court. The High Court ruled that the CMA erred in determining the accrual of the cause of action of the dispute. The court was of the view that the cause of action had arisen on the date on which the appellant had notified the respondents about their claims. As a result, it set aside the dismissal order of the matter by the CMA, and ordered a retrial of the case before the CMA. Since the appellant was dissatisfied by the High Court's decision, she lodged the instant appeal to challenge it. The grounds of appeal raised by the appellant in her memorandum of appeal, if we were to paraphrase them, are to the effect that, one, the claim by the respondents is time barred; two, the accrual of cause of action as found by the CMA means that the claim is time barred; three, the High Court misapprehended the CMA's finding that supported its decision; and four, the High Court abducted its powers in decision making. When the matter was called on for hearing, Mr. Frank Kilian, learned advocate represented the appellant. On the other hand, Mr. Gilbert Mushi

who teamed up with Mr. David Ndossi, learned advocates, represented the respondents who resisted the appeal. Since the counsel for both sides had already lodged in the Court their written submissions for and against the appeal, they adopted them as forming part of their oral submissions clarifying the written submissions respectively. Preliminary issues were taken by Mr. Ndosi vehemently questioning the jurisdiction of the Court. Upon being heard on the issues, it was clear to us that his argument was that, since the High Court ordered a retrial, that decision is interlocutory. It thus means that, the decision is not appealable and the Court has no jurisdiction to entertain the appeal. The other argument was that the grounds raised by the appellant are not on pure point of law. The Court has, for that matter, no jurisdiction to entertain the appeal in terms of section 57 of the Labour Institutions Act, Cap. 300 (LIA). In reply, Mr. Kilian was of the view that the preliminary points were improperly brought to the attention of the appellant and the Court. He, nonetheless, contended that they were misconceived and therefore meritless. On the first point, he argued that, the impugned decision was by its nature not an interlocutory and was therefore appealable. As to the other point, he argued that the grounds, by virtue of their substance, raise

an issue of whether the dispute was time barred when it was instituted before the CMA which is a pure point of law. We need not detain ourselves much on the preliminary issues raised. We think that the first point is misplaced in so far as the decision of the High Court effectively determined the issue of time limitation. If we may add, by an order of retrial, the revision application was thereby finally concluded by the High Court leaving nothing else to be adjudicated by it. For that reason, we think that the impugned decision is not interlocutory as alleged. We accordingly dismiss the first point. See for instance, Deogratias Martin @ Kachangaa & Others v. DPP [2013] TZCA 259. As to the second point, we think that it is, in so far as it relates to the third and fourth grounds, to be resolved in favour of the respondents. We are of such view because, the third ground invites us to re-evaluate the entire evidence on the record against the backdrop of the CMA findings and determine whether the impugned decision was merited. On the fourth ground, the appellant is, clearly, inviting us to assess the evidence and determine whether the learned Judge abdicated her powers of deciding the matter before her. To the extent that we are invited in the third and fourth grounds to re-evaluate the entire evidence on record holistically, we are in agreement with the counsel for the respondents that those grounds are not on the 5

points of law as required by the law. Accordingly, we reject that invitation. Thus, the second point is partly sustained in so far as it only concerns the third and fourth grounds. As for the first and second grounds, we are satisfied that they raise pure point of law on whether the dispute was time barred when it was instituted before the CMA. Having disposed of the preliminary matters, we now embark on dealing with the issue revolving on time limitation which arises from the remaining two grounds. Necessarily, this issue, first and foremost, calls upon us to consider when exactly the cause of action accrued. Mr. Kilian argued that, the CMA correctly held that, the cause of action accrued on the respective retirement dates of the respondents, as the entitlement to the claimed benefits arose immediately after such retirements became effective as per Clause 21 of the CBA. Thus, the CMA referral form, at pages 9 to 13 of the record of appeal dated 22n d August, 2019 and received by the CMA on 26th August, 2019, was filed by the respondents after the expiry of the 60-days' statutory limit. To support his arguments, Mr. Kilian relied on Barclays Bank Tanzania Limited v. Phylisiah Hussein Mcheni [2021] TZCA 202, and the decision of the High Court in Zakayo Malulu v. Pangea Minerals [2021] TZHC 6511. On the contrary, Mr. Mushi contended that the cause of action accrued on 16th and 18th July, 2019, when the respondents' claim was 6

denied by the appellant, rendering their referral of the dispute to CMA timely. In Mr. Mushi's view, the High Court correctly decided the issue. As to the authorities relied on by Mr. Kilian, Mr. Mushi argued without more that, they are distinguishable for they do not fall within the circumstances of the matter at hand. From the competing submissions, it is not disputed that the record is clear that the first and second respondents effectively retired from the service on 1s t July, 2018 and 28th February, 2019 respectively. It is also not in dispute that there were letters from the appellant to the first and second respondent respectively dated 18thJuly, 2019 and 16th July, 2019 (exhibit A2) concerning the claim which is the subject matter of the instant matter and that, the High Court considered 16th July, 2019 as the date on which the cause of action accrued. However, going by the arguments by the learned counsel for both sides, the dispute is on the date when the respondents' right of action accrued against the appellant, mindful that the claim is a subject of 60 days' time limitation reckoned from the date of its accrual in terms of rule 10 (2) of the LIR. In the case of Barclays Bank Tanzania Limited (supra), this Court held that the 60-days' period for non-termination disputes, as is the instant dispute, begins when the factual situation entitling one to a right to a remedy arises. Similarly, in Registered Trustees of Baraza Kuu

la Waislamu Tanzania (BAKWATA) v. Bodi ya Wadhamini Jumuiya ya Waislamu Kumwelulo & Another [2024] TZCA 288, this Court, citing the cases of Ramadhani Nkongela v. Kasan Paulo [1988] T.L.R. 56 and Maulid Makame AM v. Kesi Khamis Vuai [2004] TZCA 123, affirmed that the right of action begins when a party becomes aware of the act complained of. The position of this Court in those authorities raise a question for us as to when exactly the relevant factual situations that entitled the respondents to sue the appellant for the repatriation benefits arose. In other words, when exactly the respondents became aware that they were entitled to be paid the repatriation benefits. With regard to that question, we have had regard to the retirement letters on record (exhibit Al), clause 21 of the CBA, and section 43 (1) of the Employment and Labour Relations Act, Cap. 366 (ELRA). The said letters of retirement indicated the effective retirement dates for the respondents as 1s t July, 2018 and 28th February, 2019 respectively. They also informed the respondents of their right to repatriation benefits and what was required of them in relation to those benefits. Clause 21 of the CBA entitles a retired employee of the appellant to such benefits upon retirement. As to section 43 (1) of the ELRA, it as well entitles one to those benefits upon termination of his service.

Since the appellants were entitled to claim for such right upon their retirement on the afore stated dates and not before, we are fortified that the right of action against the appellant for such right accrued from those dates and not the subsequent dates thereafter when they were following up their claim as alleged. It is therefore from the moment their respective retirement became effective as stated above that the time limit started to run against them. It is not without significance to say that since each of the respondents retired on a different date, it is clear that each of them had his own separate date of accrual of right of action in terms of clause 21 of the CBA and section 43 (1) of the ELRA. In the circumstances, having all filed their joint complaint dated 22n dAugust, 2019 which was on record received by the CMA on 26th August, 2019, it means that the same was instituted beyond the statutory time limit of 60 days and hence time barred as was correctly found by the CMA. In the case of M/s. P & O International Ltd v. The Trustees of Tanzania National Parks (TANAPA) [2021] TZCA 248, this Court held that pre-court negotiations and communications between the parties do not extend the limitation period or stop the running of the statutory time limitation as is the case in this appeal. In that case, this Court cited with approval the cases of Makamba Kigome & Another v. Ubungo Farm

Implements Limited & PRSC, Civil Case No. 109 of 2005 (unreported) and Barclays Bank Tanzania Limited v. Phylisiah Hussein Mcheni (supra). It then went on to hold that: "It is trite that pre - court action negotiations have never been a ground for stopping the running o f time. Our decision in Consolidated Holding Corporation v. Rajani Industries Ltd & Another, Civil Appeal Nof 2 o f 2003 (unreported) cannot be more relevant in this appeal for the proposition that negotiation do not check the time from running. The Court sought inspiration from a book by J.K Rustomji on the Law o f Limitation, 5th edition to the effect that the statute o f limitation is not defeated or its operation retarded by negotiations for a settlement pending between the parties/' [Emphasis added]. In Makamba Kigome & Another (supra), referred to herein above, the Court made the following observation which is relevant to the case at hand. It stated: "Negotiations or communications between parties since 1998 did not impact on limitation o f time. An intending litigant, however honest and genuine, who allows himself to be lured into 10

futile negotiations by a shrewd wrong doer, plunging him beyond the period provided by law within which to mount an action for the actionable wring, does so at his own risk and cannot front the situation as defense when it comes to limitation o f time. " [Emphasis added]. Likewise, in the case of Barclays Bank Tanzania Limited (supra), the Court underscored the critical importance of parties strictly adhering to the statutory time limitations. The Court categorically stated that: "We think matters would not come to finality as required if a party who allows grass to grow under his feet and delays in instituting an action, would only be given an order to refile it The very object of the law of limitation would be defeated for..." [ Emphasis added]. If we accept the invitation by the counsel for the appellant, and as a result hold that, the cause of action accrued when the appellant on 16th and 18th July, 2019 (exhibit A2) replied in writing to the follow-ups by the respondents, we would erroneously be using the communications and negotiations by the parties to defeat the statutory time limitation of 60 days. We are not prepared to accept such invitation as it is contrary to the settled position of the law above. ii

In the event, we find merits in the two grounds of appeal to the effect that the claim by the respondents was already time barred when it was instituted before the CMA. Consequently, we allow the appeal, and quash and set aside the decision of the High Court in Labour Revision No. 36 of 2021. In substitution therefor, we restore and uphold the award of the CMA. We make no order as to costs. DATED at DAR ES SALAAM this 6th 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. Frank Kilian, learned counsel for the appellant and respondents appeared in person, is hereby certified as a true copy of the original. 12