Simba Net (T) Limited vs Helio Andare Morao Abrantes (Civil Appeal No. 434 of 2022) [2025] TZCA 823 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA. 3.A.. MASOUD. 3.A. AND AGATHO. J.A.^ CIVIL APPEAL NO. 434 OF 2022 SIMBA NET (T) LIMITED.....................................................................APPELLANT VERSUS HELIO ANDARE MORAO ABRANTES................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division, at Dar es Salaam) (Maqhimbi. 3 / > dated the 25th day of April, 2022 in Labour Revision No. 180 of 2021 JUDGMENT OF THE COURT 22M July & 7th August, 2025 MASOUD. J.A.: In the High Court, Labour Division, at Dar es Salaam, the appellant and the respondent were heard on an application for revision filed by the former to challenge the decision of the CMA which was in favour of the respondent. In its decision, the CMA found that the appellant was in breach of the employment contract that the appellant had entered with the respondent, a Portuguese citizen. It awarded the respondent a compensation of two months' net salary for harassment, to wit, USD l

25,500 only; and compensation of 21 months' salary for a breach of contract which was to the tune of USD 262,500 only. The revision by the appellant was grounded on the complaints that, the CMA erroneously held that, there was breach of contract despite sufficient evidence that the termination was based on redundancy; that, the CMA erroneously held that the respondent was discriminated while there was no evidence to that effect; the CMA erroneously held that the respondent was entitled to compensation for unfair termination and discrimination; the CMA erroneously held that the termination procedures were not adhered to despite the appellant's evidence; the CMA erroneously assigned wrong reason for the respondent's termination; and the CMA entertained a referral which was improperly before the CMA. Having heard the parties, the High Court upheld the decision of the CMA, save for the finding that the respondent was discriminated and harassed which, in terms of section 7 (4) and (5) of the Employment and Labour Relation Act, Cap. 366 (the ELRA), the court quashed and set aside as it was not supported by evidence. With regard to the breach of the contract, it found that the respondent's contract of service was terminated on ground of redundancy before the expiry of the agreed period as was 2

also found by the CMA. The court was satisfied that the procedures under section 38 of the ELRA with regard to how redundancy termination should be effected was not complied with by the appellant. In view of the above, the High Court further found that the CMA was right in its conclusion that the termination of the respondent's employment by way of redundancy was unfair. It was, in that respect, found that not only the reason for the purported redundancy was not backed by evidence, but also the procedures provided for under section 38 of the ELRA and rule 23 of the Employment and Labour Relations (Code of Good Practice) Rules, G. N. No. 42 of 2007 ('the Rules') were not complied with by the appellant. In relation to the latter, the High Court pointed out that the record is glaring that the appellant was not notified of the intended retrenchment and there was equally no proof of consultation meetings held before the retrenchment. However, the High Court found that there was justification to revise the reliefs that were granted. One, that, since harassment was found not to have been established, the award of the compensation for harassment was thus revised and set aside. Two, having only considered exhibit Dl, the High Court decided that the contract of service at issue had

commenced on 1st August, 2016 and was due to end on 31st July, 2018 when the respondent's service was terminated on 23rd February, 2018. On the above account, the High Court went ahead to find that the remaining period of the contract was 5 months which should be the basis of calculating the amount of compensation mindful of the respondent's undisputed monthly salary of USD 12,500.00. In the end, the High Court awarded the respondent compensation for breach of contract to the tune of USD 65,865.6 for the remaining period of 5 months of the contract and seven days worked prior to the termination of the respondent's service. The appellant was aggrieved by the above decision. She was convinced that her grounds for revision at the High Court were not properly considered and determined by the learned Judge. She thus lodged the instant appeal in this Court. Having abandoned three grounds of appeal out of five which were originally listed in her memorandum of appeal, she was left with two grounds only. With the service of Mr. Juvenalis Ngowi, the appellant endeavored to clarify the remaining grounds after adopting the relevant part of the written submission that he had lodged earlier. The remaining two grounds are as follows: 4

1. That, the High Court Judge erred in law fo r failure to hold that the arbitrator wrongly applied the law in making a finding that the appellant had no fa ir reason to term inate the respondent from employment.
2. That, the High Court Judge erred in law for failure to hold that the arbitrator wrongly applied the law in making a finding that in term inating the respondent's employment appellant faulted term ination procedure. On the other hand, the respondent had lodged a notice of cross appeal consisting of two grounds. At the hearing where the respondent was duly represented by Mr. Gilbert Mushi, learned advocate, all those grounds were, with our leave, replaced with a ground which faulted the learned Judge of the High Court for failing to assign reasons for her departure from the decision of the CMA relating to the award of compensation for the breach of contract. We have considered the rival submissions of both learned advocates. We did so mindful of the record of appeal before us and the provisions of section 57 of the Labour Institutions Act, Cap. 300 (LIA) which requires this Court in an appeal like the present to only deal with pure point of law. 5

All what Mr. Ngowi was saying in relation to the remaining grounds which he insisted that were on the point of law is that the High Court's finding on the fairness of reason and procedure was not supported by the evidence on the record and the law. It was, therefore, not proper for the learned Judge to uphold the award of the CMA which erroneously found that the respondent's termination on the ground of redundancy was without valid reason and without following fair procedure. In so doing, Mr. Ngowi invited us to examine the CMA Form 1 at pages 1 to 6 of the record of appeal and find that it was not about a claim of unfair termination but breach of employment contract which meant that it did not support a finding of unfair termination. Replying, Mr. Mushi submitted that the respondent's claim was on breach of contract which resulted into unfair termination. Clarifying, Mr. Mushi contended that whilst the appellant terminated the respondent on the alleged ground of redundancy, the requisite procedure for redundancy termination was not followed by the appellant prior to terminating the contract prematurely and evidence justifying redundancy termination was not adduced. As a result, the appellant breached the contract and thereby unfairly ending the respondent's service before its expiry. 6

In the end, Mr. Mushi contended that, the issue is, in view of the foregoing, whether the appellant acted fairly in terminating the respondent's service before the expiry of the relevant contract. He relied on Stella Lyimo v. CFAO Motors Tanzania Limited [2022] TZCA 742, and St. Joseph Kolping Secondary School v. Alvera Kashushura [2022] TZCA 445 which were, however, in a rejoinder submission by Mr. Ngowi, alleged to support the appellant's grounds of appeal for they enhance the appellant's argument that the respondent's complaint was not on fairness of termination as part B of CMA Form No.l was not completed by the respondent. On the cross-appeal, Mr. Mushi submitted that the CMA's decision to award the respondent compensation for breach of the contract was based on the finding that, exhibits A1 and A2 (residency permit and work permit respectively) established that the respondent's contract of employment commenced on 15th November, 2017 and was due to end on 14th November, 2019. It was, thus, Mr. Mushi submitted, the CMA's finding that, when the respondent was prematurely terminated on 23rd February, 2018, the remaining period of the contract, which was the basis of the calculation for the awarded compensation, was 21 months.

We were, in respect of the CMA's finding above and the conclusion that it reached, referred to pages 239, 240, 241, and 244 of the record of appeal. That record, it was submitted, contains, among other things, the reasoning of the CMA supporting the finding that, the respondent was engaged under a two-year fixed term contract of service expiring on 14th November, 2019. According to Mr. Mushi, the CMA's finding was that, when the termination was effected on 23rd February, 2018, the remaining period of that contract was 21 months. In support of that finding, CMA was of the view that, the evidence of the respondent was uncontroverted, exhibits A1 and A2 that were tendered by the respondent were heavier than the purported employment contract (exhibit D l) tendered by the appellant, and there was unexplained failure by the appellant to call her Human Resource Manager, one Makoye Ngofilo notwithstanding that he was a material witness on the issue at stake, and in particular, the respondent's evidence on the contract whose duration corresponds with exhibits A1 and A2. Regrettably, the learned Judge, argued Mr. Mushi, unilaterally and without hearing the parties on the remaining period of the contract of

service after the termination of the respondent's service and on the amount of compensation equivalent to the remaining contractual period, substituted the CMA's finding with a finding at pages 440, 445, 447, 453 that the employment contract evidenced by exhibit D1 had commenced on 1st August, 2016 and was to end on 31st July, 2018. Ultimately, it was further argued, the learned Judge concluded that the remaining period of the contract at the time of the termination of the respondent's service was 5 months and not 21 months. Referring us to the application by the appellant for revision before the High Court at pages 253 and 254 of the record of appeal, the learned counsel for the respondent invited us to peruse the record and in so doing find that there was no ground of revision that was raised and argued by the appellant at the High Court against the finding of the CMA as to the remaining period of the contract and basis of the calculation for the compensation for breach of the contract. On this score, it was the submission by Mr. Mushi that, there was no basis at all for the High Court to fault that finding. Worse still, it was argued, having done so, there was no reason that was assigned by the learned Judge to support her decision departing from 9

the CMA's award. Reliance was placed on the cases of Francis Mtawa v. Christina Raja Lipanduka [2022] TZCA 719; and Ruby Roadways T. Ltd v. PUMA Energy Tanzania Limited [2024] TZCA 160. In those cases, we respectively emphasized on the need for Judges to invite parties to address the court, upon raising an issue suo motu before making a decision, and the principle that it is inherent in courts to give reasons for their decisions. We were, accordingly, urged to quash and set aside the respective decision by the High Court and restore that of the CMA for it was not challenged by the appellant at the High Court. By way of a reply to the submission in chief on the cross-appeal, Mr. Ngowi agreed in principle that the learned Judge indeed departed from the decision of the CMA on the matters that were referred to by Mr. Mushi. He, however, simply referred us to page 440 of the record of appeal saying that the reasons for such a departure were apparent on record as exhibit D1 was the only contract of service involving the parties herein which was produced in evidence. He also referred us to page 279 of the same record as he argued that, the departure was within matters that were canvassed by the parties. 10

The substance of the reply by Mr. Ngowi to the submission on the cross-appeal was, by way of rejoinder, disputed by Mr. Mushi who maintained the opposite stance. He argued that the submission by the appellant referred to at page 279 of the record of appeal was not based on any ground of revision at the High Court. He added that, if the court was minded as it did to decide on those issues, it should have considered the arguments of the respondent found at pages 294 and 295 of the record as well and assigned reason for its decision. We have read and considered the rival arguments that emerged, firstly, from the two grounds of appeal which relate to the fairness of reasons and procedure for the redundancy termination of the respondent's service and secondly, from the sole ground of cross-appeal relating to the failure of the learned Judge of the High Court to assign reasons for her departure from the CMA's award of compensation for breach of the contract of service. The arguments urgently called upon us to reinstate the relevant position of the law against the backdrop of the matter before us as we will do so shortly. The position of the law on the fairness of reasons and procedure regarding termination of service of an employee who is engaged under a l i

fixed term contract of service was discussed in the case of St. Joseph Kolping Secondary School (supra). We stated that: Termination o f service is said to be fair according to section 37(2) if it is based on fa ir and valid reasons and carried out in observance o f fair procedures stipulated in the provisions o f ELRA. The fairness requirem ent under the ELRA emanates from the provisions o f Termination o f Employment Convention 158 o f 1982, which establishes the core elem ents o f the em ployee's rights as to include requirem ent for valid reason for any termination. The Convention recognizes three valid reasons as misconduct, incapacity and operational requirem ents which have been duly incorporated in section 37(2) (b) (i) and (ii) o f the ELRA ...... We .... do not agree.... thatu nder our law s a fixed term contract o f service can be prem aturely term inated without assigning reasons. This is because the conditions under section 37 o f the ELRA are m andatory and therefore im plicit in a ll employment contracts. It is only inapplicable to those contracts whose terms are shorter than 6 months. (See section 35 o f the ELRA). In addition , creation o f a specific duration o f contract gives the 12

employee legitim ate expectation that if everything rem ains constant, he or she w ill be in the service throughout the contractual period. The expectation is defeated, if the same can be term inated at any tim e without reason. In view o f the foregoing discussions, therefore, the Labour Court Judge was right in holding that, term ination o f respondent's employment contract could not be fa ir without being based on fa ir reasons and procedure set out under section 37 o f the ELRA. Conversely, in the case of Good Samaritan v. Joseph Robert Savari Munthu, High Court Labour Revision No. 165 of 2011, from which we draw inspirations, it was, correctly in our view, held that: "When an em ployer term inates a fixed term contract, the loss o f salary by an employee o f the rem aining period o f unexpired term is a 'direct, foreseeable and reasonable' consequence o f the em ployer's wrongful action. Therefore, in this case probable consequence o f the applicant's action was loss o f salary for the rem aining period o f the employment contract which was 21 m onths." 13

It was not in dispute that, the termination of the respondent's service on 23rd February, 2018 before its lapse was, supposedly, based on redundancy. As was the CMA, the learned Judge, on the basis of the grounds of revision before her, was equally satisfied that the fairness of the reason and procedure was wanting for there was a gross failure by the appellant to prove that the reason for redundancy was valid and that, the procedure under section 38 (1) of the ELRA and rule 23 of the Rules, 2007 was complied with. Looking at the substance of the submission by appellant's counsel that he lodged earlier for the appellant and clarifications that he made at the hearing, there are two issues that emerged which we brought to the learned counsel as he was addressing us. One, whether the grounds are on the point of law as required by section 57 of the LIA and whether the fairness of reason and procedure as it relate to filling CMA Form No.l is reflected in any of the two grounds of appeal and whether it was indeed raised at the High Court as a ground of revision and decided upon by it. In our scrutiny, we are fortified that the substance of the submission by the appellant's counsel sought to fault the High Court's decision for failure to properly evaluate the evidence adduced by the appellant which, 14

according to the learned counsel, proved that the respondent was properly terminated on ground of redundancy as per the testimony of DW1 and that the proper procedure was adhered to. The learned counsel drew our attention to the evidence that, the respondent's position ceased to exist (exhibit D3); that, since the appellant is a foreigner who was then holding resident permit (exhibit A l) and work permit (exhibit A2), continuing keeping him was contrary to the law; and that, for such reason, notice of redundancy termination (exhibit A5) was justifiably issued. Certainly, matters which were raised by the appellant's counsel on the two grounds are factual issues. Clearly, the learned counsel is with those matters inviting us to fault the concurrent factual findings of both the CMA and the High Court that the respondent's termination was not founded on fair reasons and procedure. We will, outrightly, not consider them as they are not based on pure point of law as is required by section 57 of the LIA. See for instance, Remiglus Muganga v. Barrick Bulyanhulu Gold Mine [2018] TZCA 219. As to the other limb of the complaint that CMA Form No.l was not filled in a manner that could have established fairness of reasons and procedure, we think this is a new ground of appeal which was neither 15

raised by the appellant in his memorandum of appeal lodged on 26th September, 2022, nor was it a ground of revision at the High Court. In so far as the former is concerned, it is not surprising that it did not at all feature in the 12-pages written submission supporting the appeal. Rather, it was sneaked in the course of oral clarification by the learned counsel of the written submission supporting the appeal. Although we are fortified that the above complaint which was raised in the course of the hearing is misplaced, we think that the substance of the respondent's case at the CMA appearing at pages 2, 3 and 4 of the record of appeal was essentially on the fairness of reasons and procedure regarding the termination of his service resulting from the breach of the contract of service by the appellant. In that respect, the respondent claimed for, amongst others, an amount of compensation equal to monthly salary of the remaining contractual period. Thus, even if we assume that the complaint was not misplaced, we will still not accept the invitation to resolve it in the appellant's favour as the fairness of the termination was within the purview of the respondent's complaint before the CMA. The complaint is thus without merit. We dismiss it. 16

With regard to the issue in the cross-appeal, it is evident on record that the CMA found that the duration of the respondent's fixed term contract of service which commenced on 15th November, 2017 and was due to end on 14th November, 2019 was 24 months. Thus, when the respondent's service was terminated on 23rd February, 2018, the remaining period of the contract was 21 months according to the finding of the CMA. On the contrary, the High Court, while maintaining that the respondent's monthly salary of USD 12,500 was not disputed, it departed from the CM's finding on the remaining contractual period, having held that the respondent's contract commenced on 1st August, 2016 and was due to end on 31st July, 2018 based on exhibit D1 without saying a word on the undisputed exhibits A l and A2. Thus, the court found that, when the respondent was terminated on 23rd February, 2018, there were only five months left before the expiry of the contract which is contrary to 21 months found by the CMA. Our endeavor to establish whether the finding was in respect of any ground of revision at the High Court was of no avail for we did not get any ground in that respect at pages 253 to 254 of the record of appeal. Similarly, our perusal of the decision of the High Court found at pages 438

to 454 of the record of appeal could not land our eyes on any reasons that informed the decision. Even worse, it was quite clear that in arriving at that decision, the High Court only considered exhibit D1 and the testimony of DW1. It did not literally consider the testimony of AW1, exhibits A l, A2 and A3 which were the basis of the CMA's decision that when the respondent's service was prematurely terminated on 23rd February, 2018, the remaining contractual period was 21 months. Notably, the CMA had in respect of the appellant's staff handbook (exhibit A3) found that it envisaged the renewal of the contract as was previously done. Consequently, we agree with Mr. Mushi that the High Court's finding cannot in the circumstances stand. We accordingly allow the ground of cross-appeal. In view of the foregoing, we dismiss the appeal as it is devoid of merit and allow the cross-appeal for the reasons stated above. In consequence therefor, we quash and set aside the decision of the High Court which ordered the respondent to be paid by the appellant a total sum of USD 65,865.6 as compensation for the remaining contractual period of 5 months and 7 days. In substitution therefor, we restore and uphold the respective decision of the CMA which awarded the respondent the amount equal to the monthly salary of the remaining contractual period of 18

21 months as compensation for the breach of the contract. In that respect, we order the appellant to pay the respondent a total sum of USD 262,500.00 as compensation for the remaining period of 21 months of the breached contract of service which was correctly awarded by the CMA. We make no order as to costs. It is so ordered. 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 Mr. Peter Clavery, learned counsel for the appellant who is also holding brief for Mr. Gilbert Mushi, learned counsel for the respondent, is hereby certified as a true copy of the oriqinal. 19