Engelbertus Lushagara vs Petrofuel (T) Limited (Civil Appeal No. 215 of 2022) [2024] TZCA 1034 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA. J.A.. MGEYEKWA, J.A., And ISMAIL, J.A.l CIVIL APPEAL NO. 215 OF 2022 ENGELBERTUS LUSHAGARA .................... ................ APPELLANT VERSUS PETROFUEL (T) LIM ITED ............. ..................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mgangg, 3.) dated the 13th day of December, 2016 in Consolidated Revision Nos. 421 and 422 of 2020 JUDGMENT OF THE COURT 29th October & 5th November, 2024 NDIKA, 3.A.: At issue in this appeal is whether the appellant, Engelbertus Lushagara, lodged his constructive termination claim against his former employer, Petrofuel (T) Limited, in the Commission for Mediation and Arbitration, hereinafter referred to as "the CMA," within the allotted time. The following circumstances gave rise to the above issue: the appellant was hired by the respondent in May 2016 as Business Manager

• Corporate on a one-year fixed-term contract that was renewable. He quit his job on 20th July, 2018, claiming that his employer had made the

workplace hostile and intolerable. He filed a claim in the CM A, citing constructive dismissal. The claim was upheld by an arbitrator of the CMA, who gave him a total of TZS 10,600,000.00 in unpaid remuneration and anticipated remuneration for the final five months of the contract. The dispute was then brought before the High Court, Labour Division at Dar es Salaam, because of both parties7 dissatisfaction with the CMA's award. While the appellant instituted Revision No. 422 of 2020 based on three grounds of complaint, the respondent lodged Revision No. 421 of 2020 predicated on eight points of grievance. The two matters were heard and determined as a combined motion for revision. As an additional ground of revision, the respondent argued that the appellant's referral to the CMA was time-barred, and the High Court upheld this protestation. Recognising that, pursuant to rule 10 (1) of the Labour Institutions (Mediation and Arbitration) Rules, 2007, Government Notice No. 64 of 2007 ("the Rules"), a claim for unfair termination must be submitted to the CMA within thirty days from the termination date, the High Court articulated, on page 383 of the record of appeal, that:

"I have examined the CMA's record and [found] that the only referral o f a dispute to the Commission for Mediation and Arbitration Form 1, hereinafter referred to [as] CMA F .l, was received a t the CMA on 23rd August, 2018. The said CMA F .l shows that it was signed by the employee on 2 3 * July, 2 0 1 8 ." The court emphasised additionally, on pages 384 and 384 of the appeal record, that: ”... the employee filed the dispute on 2 J d August, 2018. Since there is no dispute that the employee resigned on 2(P July, 2018 according to exhibits P I and D1 , the employee filed the dispute a t the CMA 34 days after resignation. [..,] It goes without saying that the dispute was file d 4 days out o f tim e and that there was no application for condonation, Since the dispute was time-barred, the arbitrator had no jurisdiction to determ ine it." The learned Judge ultimately annulled the CMA's proceedings along with the award. The appellant, represented by Messrs. Eben E. Silayo and Michael Mushi, contends that the nullification of the proceedings was erroneous, primarily asserting that his constructive termination claim was improperly

deemed time-barred. At the very outset, Messrs. Stephen Mosha and Kaizer Msosa, learned counsel for the respondent, candidly conceded the point. To begin with, we observe that the High Court correctly determined that the dispute between the parties arose on 20th July 2018, when the appellant's thirty-day notice of resignation to his employer became effective, resulting in the termination of employment. The court also correctly determined that, pursuant to rule 10 (1) of the Rules, the appellant was required to file his constructive termination claim within thirty days of the termination by submitting CMA F.l - a dispute referral form - to the CMA. The referral form dated 23rrf July 2018 documented on page 6 of the record of appeal unequivocally indicates that it was submitted on 23rd July 2018, not 23rd August 2018. It signifies that it was created and signed by the appellant, then received and endorsed by the CMA on the same day, merely three days following the contested termination. Undoubtedly, the High Court misapprehended the accurate date of the referral, as it referenced the certificate of settlement/non-settlement of the dispute - CMA F.6 - provided by the mediator on 5th September

2018, following unsuccessful mediation. The document referenced on page 15 of the appeal record erroneously states 23rd August, 2018 as the date the dispute was referred to the CMA. Given that CMA F.l is the legal process that initiated the claim in the CMA, the date specified on it must be regarded as accurate and reliable. In contrast, the date on CMA F.6, noted by the mediator after the unsuccessful mediation, was merely ancillary and, by any standard, should be regarded as a clerical error. Accordingly, we find merit in the appeal and so vacate the High Court's judgment, as we are convinced that the appellant's claim was properly filed within the designated limitation period. Typically, we would have been inclined, as a consequential measure, to refer the consolidated motion for revision to the High Court for it to hear the parties on their individual grounds of revision and adjudicate them appropriately. In this instance, however, we are compelled to refrain from taking that course of action due to a troubling disclosure in the record of appeal on page 60, indicating that the appellant appeared as the lone witness in support of his claim without taking an oath or affirmation. Conversely, the respondent's three witnesses (DW1 Kamiti Stephano, DW2 Teidira Bebard, and DW3 Naomi

Joseph) provided sworn testimony, as indicated in the record on pages 83, 94, and 108, respectively. In addressing the matter, the learned counsel for both sides concurred that the admission of the appellant's testimony without an oath or affirmation was exceedingly irregular, nullifying the CMA's proceedings. We concur with them. The omission violated rule 25 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules 2007, Government Notice No. 67 of 2007, which requires every witness before the CMA to provide testimony under oath (or affirmation). Our jurisprudence on this matter is firmly established based on a continuous line of authorities from this Court. The identified irregularity is detrimental, vitiating the trial proceedings and the decision thereon: see, for instance, Catholic University of Health & Allied Science (CUHAS) v. Epiphania Mkunde Athanase [2020] TZCA 1890; Tanzania Portland Cement Co. Ltd v. Ekwabi Majigo [2021] TZCA 443; Iringa International School v. Elizabeth Post [2021] TZCA 496; North Mara Gold Mine Limited v. Khalid Abdallah Salum [2022] TZCA 1; Copycat Tanzania Limited v. Mariam Chamba [2022] TZCA 107; Attu J. Myna v. CFAO Motors Tanzania Limited

[2022] TZCA 187; and Buiyanhulu Gold Mines Limited v. Keneth Robert Fourie [2022] TZCA 460. Given the above position, we invoke our revisional authority under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 and proceed to nullify the CMA's arbitral proceedings and the resultant award. Accordingly, we send the record back to the CMA for the matter to be re arbitrated by a different arbitrator. Since cost orders are usually not applicable in labour disputes, we do not make one. DATED at DAR ES SALAAM this 4th day of November, 2024. G. A. M. NDIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 5th day of November, 2024 in the presence of Mr. Michael Mushi, learned counsel for the Appellant and in the absence of the Respondent is hereby certified as a true copy of the oriqinal.