CRDB Bank PLC vs Petro Andrea Chilato (Civil Appeal No. 417 of 2023) [2024] TZCA 1091 (12 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA. 3.A.. FIKIRINI. J.A. And KENTE. J.A.^ CIVIL APPEAL NO. 417 OF 2023 CRDB BANK PLC........................................................................APPELLANT VERSUS PETRO ANDREA CHILATO......................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Tabora) f Bahati. J.) dated 17th day of March, 2023 in Labour Revision No. 5 & 6 of 2022 ORDER OF THE COURT 6th August & 12th November, 2024 FIKIRINI, J.A.: The decision in Consolidated Labour Revision Nos. 5 & 6 by the High Court of Tanzania, Tabora, dated 17th March, 2023, has led to significant dissatisfaction by the appellant, CRDB Bank PLC, prompting the present appeal. The root of the appeal lies in the appellant's disagreement with the concurrent decisions of the Commission for Mediation and Arbitration (CMA) and, subsequently, the High Court. Both bodies had found the termination of the respondent's contract of service for misconduct on 31s t December, 2020 to be unfair.

The case’s background is as follows: the appellant employed the respondent on 18th November, 2008 as a Relationship Manager at its Moshi Branch. After nearly seven years of dedicated service, he was promoted to the position of a Branch Manager in October, 2015 and was transferred to Nzega, Tabora. However, his twelve years of service with the appellant ended on 31st December, 2020, following charges of gross dishonesty and a subsequent finding of misconduct after a disciplinary hearing. The respondent's appeal to the appellant's Managing Director was unsuccessful. Consequently, he approached the CMA, filing a claim for unfair termination in Labour Dispute No. CMA/TBR/TBR MJN/26/2021. In its award dated 22n d April 2022, the CMA ruled in favour of the respondent, determining that while the termination was procedurally fair, it was substantively unfair. The CMA directed the appellant to comply with the provisions of sections 40 (1) and (3) of the Employment and Labour Relations Act, Cap 366 R.E. 2019 (the ELRA), within thirty days of the award. Both parties were dissatisfied with the CMA's award. The appellant filed an Application for Revision No. 5 of 2022 on 20th May 2022, and the respondent filed his No. 6 of 2022 on 20th June 2022. Having heard the parties the High Court revised the decision by finding that the

respondent's termination was substantively and procedurally unfair and ordered the appellant to compensate the respondent by paying him sixty months' salaries and repatriation costs. Undeterred, the appellant appealed to this Court raising seven (7) grounds, which are as follows:

1. That the High Court Judge erred in law in holding that the alleged Loan Agreement between the respondent and DW3 was a proper and lawful private business despite sufficient evidence to wit exhibits D14, D17 and D20 (Loan Agreements), which proved the respondent's motive to deceive DW3.
2. That the High Court Judge erred in law for failure to evaluate the evidence on record to observe the nature o f the appellant's business and the respondent's position as the Branch Manager to hoid that through the loan agreements, the respondent's transaction with DW3 was in conflict with the appellant's business interest and hence lawful ground for termination o f the respondent's employment contract.
3. That the High Court Judge erred in law for failure to evaluate the testimony o f DW3 and the corroborating evidence that proved the respondent dishonestly used the appellant's office to deceive DW3 into depositing money into his personal account while DI/I/3 was intending to open and deposit the money in the Fixed Deposit Account (FDR).
4. That the High Court Judge erred in law in holding that the appellant failed to prove the offences raised against the

respondent white the appellant produced witnesses and evidence that proved on balance o f probabilities as required under Rule 9 (3) o f the Employment and Labour Relations (Code o f Good Practice) G. N. No. 42 o f 2007 that the respondent dishonestly used the appellant's motor vehicle and fuel . 5. That the High Court Judge erred in law for failing to distinguish the difference in law between the place o f recruitment and place o f domicile and failed to give a proper interpretation o f the law regarding exhibit D ll and hence arrived at a wrong decision regarding obligations o f the appellant to repatriate the respondent 6. That the High Court Judge erred in law for failure to hold that the Commission for Mediation and Arbitration erred in taw in awarding the respondent reliefs in contravention o f section 40 (1) and (3) o f the Employment and Labour Relations Act Cap. 366 R.E. 2019 and instead, the High Court continued giving reliefs that contravene the law. 7. That the High Court Judge erred in law by issuing two different decrees on the same judgment. Prior to the hearing of the appeal, the respondent, represented by Mr. Emmanuel B. Musyani, learned Counsel, filed a notice of preliminary objection on 14th November, 2023. However, this notice was withdrawn to facilitate the appeal hearing. Similarly, Mr. Luka Elingaya, learned Counsel for the appellant, requested that the proceedings be regularized

by adopting the supplementary record of appeal already submitted to the Court. Both requests were granted, and the hearing of the appeal proceeded as scheduled. In his address to the Court, Mr. Elingaya began by adopting the written submissions filed on 29th September, 2023 and the list of authorities submitted on 29th July, 2024 as part of the appellant's legal position in support of the appeal. He focused on several key points, starting with ground 6 of the appeal, which contends that the awards by the CMA and the High Court contravened the provisions of sections 40 (1) and (3) of the ELRA. Mr. Elingaya argued that the Court should consider the decision in Charles Mwita Siaga v. National Microfinance Bank PLC (Civil Appeal No. 112 of 2017) [2022] TZCA 227 (29th April 2022; TANZLii), which held that reinstatement is not desirable in cases of termination for gross misconduct. He further argued that, if the Court finds the termination to have been fair but the procedure unfair, it is not necessarily required to order for twelve months' remuneration; instead, it may award less, as held in Felician Rutwaza v. World Vision Tanzania (Civil Appeal No. 213 of 2019) [2021] TZCA 2 (2n d February, 2021; TANZLii). He, therefore, requested that the Court reduces the award of compensation of sixty months' salaries awarded by the High Court.

Engaged by the Court on what the law says where both the procedure and substance for determination is unfair. Mr. Elingaya responded that, the compensation should not exceed twelve months' salary, according to section 40 (1) of the ELRA. He argued that the CMA and the High Court erred by not adhering to this provision, as there was no evidence that the appellant had refused to reinstate the respondent. He also noted that reasons must be provided for awarding compensation beyond twelve months, which the CMA did not do. Additionally, he contested the claim that the respondent could not find alternative employment, as this was not substantiated. To support his position, Mr. Elingaya referred the Court to the case of Stanbic Bank (T) Ltd v. Sophia Majamba (Civil Appeal No. 31 of 2020) [2023] TZCA 197 (24th April, 2023; TANZLii). Ground seven (7) is another point augmented. The learned Counsel took issue with the existence of two decrees in the record of appeal, one found on pages 721 - 723 and the second on pages 724 - 725 of the record. Between the two, he argued, the decree found on pages 724 - 725 should be considered valid as it has included all the reliefs awarded by the High Court, whereas the other one did not. Reacting to the submissions, Mr. Musyani also preceded his submission by adopting the written submissions lodged on 10th

November, 2023 and the list of authorities filed on 21st July, 2024. His submissions were to the effect that the first to fourth grounds were factual, which largely under section 57 of the Labour Institutions Act, cannot be considered by the Court. He thus urged us to decline to entertain them. On the submission by Mr. Elingaya that the award should be reduced, Mr. Musyani interpreted it as an admission that the respondent's termination was substantively and procedurally unfair. Therefore, to him, the High Court was correct in awarding what the respondent deserved because it would not be possible to reinstate the respondent on the one hand. On the other hand, he maintained that securing another job would be difficult for him while he still had twenty (20) years ahead of him of being employed. The learned Counsel further submitted that despite having twenty (20) years of being employed, the respondent had only asked compensation for ten (10) years, which is half of twenty (20) years. Mr. Musyani admitted that, even though the Arbitrator had the discretion of awarding compensation more than twelve (12) months, that should be with a reason, citing the case of Veneranda Maro & Another v. Arusha International Conference Centre, (Civil Appeal No. 322 of 2020) [2022] TZCA 37 (18th February, 2022; TANZLii), in which the Court held that unfair termination attracts a

heavier penalty. He argued that the scenario which existed in the present appeal, awarding sixty (60) months' salary is proper in terms of section 32 (5) of Labour Institution (Mediation and Arbitration Guidelines) G.N. No. 67 of 2007. Challenging Mr. Elingaya's claim regarding the validity of both decrees, Mr. Musyani argued that this was incorrect. He suggested that the appellant's Counsel could have sought correction from the High Court under section 96 of the CPC. When questioned by the Court about whether the existence of two decrees affected his client, Mr. Musyani responded that the respondent had only received one decree. He cited Halfan Sudi v. Abieze Chichili [1998] T.L.R. 527 at page 529, emphasizing that court records are serious documents and should not be lightly impeached. He urged the Court to dismiss the appeal with costs. In rejoinder, Mr. Elingaya did not have much to add, except to urge the Court to consider the issue of the two decrees issued by the High Court. We wish to begin our deliberation with the seventh ground of appeal. The respondent initially raised it as a point of objection by filing a notice of preliminary objection, citing two issues: first, that the appeal was incompetent as it violated Rule 96 (2) (e) of the Tanzania Court of Appeal Rules, 2009 (the Rules) due to the failure to include a copy of a

valid decree extracted from the impugned judgment, given that there are two decrees in the present appeal; second, that the record of appeal was defective as it contained a decree that did not align with the judgment, contravening the mandatory provisions of Order XX Rule 6(1) of the Civil Procedure Code, Cap. 33 Revised Laws (the CPC). However, the respondent later, on reflection withdrew the notice of preliminary objection, as the same point of law had been raised as a ground seven of appeal. The central issue at hand is the competence of the appeal before us, which contains two inconsistent decrees extracted from the same judgment delivered on 17th March, 2018. Being a point of law, albeit raised as a ground of appeal, it needs to be resolved first. Both parties concede the existence of two decrees with differing reliefs stemming from the same judgment. Consequently, it remains unclear which of the two decrees should be considered part of the intended appeal, especially since the appeal is against a decree, not decrees. Our interpretation of various legal provisions supports this position. For instance, Order XX Rule 6 (1) of the CPC states: "6,-(l)The decree shall agree with the judgment; it shall contain the number o f the suit, the names and descriptions o f the parties, particulars o f the claimf and shall specify clearly the relief granted or other determination o f the suit . "

Similarly, Rule 21(5) of the Labour Court Rules, G.N. No. 106 of 2007, outlines the contents of a decree: "21. -(5) The decree shall bear the date on which the judgment was pronounced, and when the Judge is satisfied that the decree has been drawn up in accordance with the judgment, he shall then sign the decree." Furthermore, according to Rule 96 (1) (h) and (2)(e) of the Rules, a copy of the decree or order being appealed against must accompany any appeal. The relevant provisions are as follows: "96. -(1) For the purposes o f an appeal from the High Court or a tribunal in its originaljurisdiction, the record o f appeal shall, subject to the provisions o f sub-rule (3), contain copies o f the following documents: (h) the decree or order; (2) For the purposes o f any appeal from the High Court in its appellate jurisdiction, the record o f appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as may be to those set out in sub-rule (1), and shall also include the following documents relating to the appeal to the first appellate court: (e) the decree or order."

From our analysis of the provisions above, we deduce that only one decree should be extracted from a judgment, not two or more. In the present appeal, the existence of two decrees extracted from the same judgment, each containing a distinct set of reliefs, creates uncertainty regarding which decree is being appealed against and which decree was drawn in accordance with the judgment and thus constitutes a valid part of the appeal record. The failure to extract a valid decree or order renders the appeal incompetent. For instance, in Dr. Fortunatus Lwanyantika Masha v. Dr. William Shija and Another (Civil Appeal 43 of 1996) [1997] TZCA 51 (10th January; 1997), the record of appeal lacked the drawn or extracted order in appeal, leading the Court to conclude that the absence of a valid decree or order, as required under Rule 89 (1) (h) (now Rule 96 (1) (h) of the Rules), rendered the appeal incompetent, resulting in its being struck out. The necessity of a valid decree was further emphasized in Victor Frank Ishebabi v. Leisure Tours and Holdings and Others, (Civil Appeal No. 152 of 2004) and Dhow Mercantile (E.A.) Ltd v. Abdirizzak S. Tuke (Civil Appeal No. 93 of 2004) (both unreported), in which the Court held that for an appeal to be competent, it must be accompanied by a valid decree, as stipulated in Rule 96 (1) (h) of the Rules.

Mr. Elingaya, despite acknowledging the incompetence of the appeal due to the existence of two decrees, attributed the mistake to the High Court and urged us to revise the decision and allow the appeal. In our view, it is unclear which decree the Court should rely upon, hence making the record of appeal incompetent. Consequently, Mr. Elingaya's request for us to revise the High Court decision and allow the appeal cannot be entertained currently, as correctly submitted by Mr. Musyani, whose position we support. While we agree with Mr. Elingaya's submission that the court bears some responsibility and blemish for the occurance, we do not believe that the parties are entirely excluded from acting responsibly when preparing their intended Court filings. As a primary obligation, a party must ensure that proper documents supporting a matter before the court, such as the present appeal, are obtained on time and filed as required. The predicament of having two decrees with differing reliefs stemming from the same judgment should have been resolved well by the High Court by applying for a correct one before lodging the present appeal, this being the only viable remedy. Rights and duties go hand in hand, and the appellant is no exception. Oppositely, after thoroughly considering the circumstances of the appeal before us, and while we concur that the appeal is incompetent

due to the existence of two decrees extracted from the same judgment, we find it necessary to consider what justice demands. The dispensation of justice requires courts to administer substantive justice and to dispose of matters expeditiously without being burdened by technicalities. This principle applies to the present appeal. By striking out the appeal, the appellant would still have the opportunity to return after obtaining a valid decree and file an application for an extension of time to lodge the intended appeal since time to appeal would likely have elapsed by the time the appellant seeks to return to this Court. Taking cognizant of that, in our view, common sense and justice compel us to decide that, rather than striking out the appeal as suggested by Mr. Musyani, the ends of justice could be met by permitting the appellant to go to the High Court and obtain a valid decree and lodge it as a supplementary record of appeal. This will allow the appellant to pursue the intended appeal, and the grievances raised will be resolved once and for all timeously. We take this stance, recognizing that the court has a duty to the parties involved. As stated in Jewels & Antiques (T) Ltd v. National Shipping Agencies Co. Ltd [1994] T.L.R. 107, parties should not suffer due to the mistakes of court officials related to supplying parties with requisite appeal documents in the administration of justice. In the

present case failure to carefully observe this led to the appeal being accompanied by two distinct decrees. We are also, guided by our previous decisions, such as in R.S.A. Limited v. HansPaul Automechs Limited and Another, (Civil Appeal No. 179 of 2016) (unreported), where a discrepancy between the date on the decree and the judgment invalidated the extracted decree, instead of striking out the appeal, the Court invoked the overriding objective principle and allowed for amendments. Similarly, in Nassor Abubakar Khamis and Another v. Wakf and Trust Commission Zanzibar, The Administrator of the Estate of Farida Ali Nassor, Nahid Khamis Issa, Akram Khamid Issa, Nashrar Khamis Issa, Fatma Nassir Khamis, and Adam Mohamed, Represented by its Agents; Ali Nassor Kombo, Khamis Issa Mohamed, Nassor Khamis Shoka, and Nassor Mohamed Nassor and Another, (Civil Appeal No. 245 of 2020), the Court invoked the overriding objective principle and permitted filing of a supplementary record of appeal. Under the circumstances, considering the nature of the case and the issues raised that need to be resolved, we find it appropriate to c invoke the powers bestowed upon us under Rule 4 (2) (b) of the Rules and the overriding objective principle as outlined in Section 3A (1) (2) of the Appellate Jurisdiction Act, Cap. 141 Revised Laws (the AJA), we 14

order the appellant to return to the High Court to secure a correct decree. The appellant is to file a supplementary record of appeal comprising of proper decree within sixty (60) days from the date of delivery of this ruling to pave way for the appeal to be heard on merit. No order as to costs, this being a labour matter. DATED at DAft ES S a LA a M this 11th day of November, 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL I certify that this is a true copy of the oriainal.