OCR CIVIL APPEAL NO 364 OF 2022 ESTHER FINIAS WAMBURA VRS BANK OF TANZANIA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, 3,A., GALEBA, 3.A. And MGEVEKWA, J.A.l CIVIL APPEAL NO, 364 OF 2022 ESTHER FINIAS WAMBURA,....,.,.,.,...... .................. .....................APPELLANT VERSUS BANK OF TANZANIA............... ............ ................. ........ ............. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam} fMaahimbL 3.1 dated the 15th day of December, 2021 in Revision No. 398 of 2020 JUDGMENT OFTHE COURT ps & qh November 2024 GALEBA, J.A.: Esther Finias Wambura, the appellant in this matter, was an employee of the Bank of Tanzania, the respondent from May 2001 when she was recruited to fill the vacancy of Personal Secretary I, Nonetheless, for reasons beyond the scope of this judgment, the appellant who had been promoted to Senior Office Management Assistant, was terminated on 8th November, 2018. The respondents act of terminating her, aggrieved the appellant, such that she lodged Labour Dispute No. CMA/DSM/ILA/1252/2018 in the Commission for Mediation and Arbitration at Dar es Salaam, (the CMA), to challenge it. The CMA dismissed her complaint thereby confirming the respondent's act of terminating the appellant. She was aggrieved by the decision of the CMA, and to challenge it, she lodged Revision No. 398 of 2020 at the High Court, Labour Division in Dar es Salaam, This application was duly heard, but like the complaint before the CMA, the matter was dismissed in its entirety for want of merit. The appellant was not satisfied with the dismissal of his application at the High Court, hence the present appeal. In this matter, the appellant raised four grounds of appeal, but for reasons to become obvious in due course, we will dispose of the whole appeal by considering only the first ground of appeal which was to the effect that; both the CMA and the High Court, erred in law for entertaining a labour dispute filed by a public servant At the hearing of the appeal before us on 1st November, 2024, Mr. Shepo Magirari, learned advocate appeared for the appellant/ and the respondent had the services of Ms. Lightness Godwin Msuya learned Senior State Attorney, Mr. Deodath Mushi learned Senior State Attorney and Mr. Fortunatus Mwandu, learned State Attorney. 2 In prosecuting the appeal and contesting it, counsel for the appellant and for the respondent had filed written submissions, corresponding to their respective positions. The substance of the appellant's position relevant to the above ground of appeal, is found at page five of her written submissions, where her learned counsel submitted: "...the fact that the appellant herein was employed by the respondent, a Government Institution, [she] was a public servant Therefore, any labour dispute with the respondent, had to be governed by the Public Service Act and not otherwise. It is unless and until the remediesprovided for under the Public Service Act are exhausted, [the appellant ought not to have] resorted, as she did, to the remedies[available] under the labour laws conferring jurisdiction to the commission [the CMA], ” The respondent's counsel relying on what this Court decided in the case of Dominic A. Kalangi v. Tanzania Posts Corporation [2022] 17CA 154, fully supported the submissions on behalf of the appellant, At the hearing of the appeal orally before us, Mr. Magirari and Ms. Msuya reiterated their common position in their written submissions. In the circumstances, they moved the Court to nullify the proceedings of the CMA 3 and quash those of the High Court. They also prayed that the award of the CMA and the judgment of the High Court be set aside. We have considered both the written and oral submissions of counsel for the parties, and we wish to begin with the law. In terms of the long title to the Bank of Tanzania Act (the BOT Act), the respondent was established for the broad objective of formulating and implementing monetary policy and to regulate and supervise all banks and financial institutions in Tanzania. Admittedly, there is no specific provision in the BOT Act providing that the respondent is a public institution/ however, section 17 (2) of the Act which provides that "the capita/ o f the Bank shaHbe subscribed and heldonly by the Government of the United Republic'* suggests that the respondent is nothing but a public entity. In addition, considering the above stated broad objectives for its existence, we entertain no flicker of doubt in Our mind, that indeed, the respondent is a public institution and the appellant, prior to her termination, a public servant. Thus, we are in full agreement with both learned counsel on the. above common position. The above finding takes us to section 32A of the Public Service Act (the PSA), which provides as follows: "32A. A public servant shall, prior to seeking remedies provided for in labour laws, exhaust ail remedies as provided for under this Act. ” Indeed, it is not the first time we are holding that a public servant, by the above provision, cannot challenge his or her termination in the CMA, without first exhausting remedies available within his or her employer and or under the PSA. This Court has done so on multiple occasions, including in Dominic Kalangi (supra), Tanzania Posts Corporation v. Evaristo Miho [2024] TZCA 443, Kilimanjaro Airports Development Company (KADCO) v. Eric Itemba [2024] TZCA 462, Tanzania Posts Corporation v. Salehe Komba and Another [2023] TZCA 17628, and; National Health Insurance Fund and Another v. Grace Lobulu And Others [2024] TZCA 259, just to mention but a few. For instance in Kilimanjaro Airports Development Company (supra), where the respondent was a company wholly owned by the Government, and the appellant, its former employee, we observed as follows: "As we held in Tanzania Posts Corporation (supra), the above provision [section 32A o f the PSA] precludes the CMA from entertaining labour disputes involving public servants unless and until they have exhausted all remedies provided for under the Act... Inasmuch as 5 executive agencies and government institutions are concerned, it is imperative to note that the Act recognizes under subsection (1) o fsection 31 that public servants in such agencies or institutions are to be governed by the laws establishing the respective agency or entity. However, in addition to such iaws, such public servants are, in terms o f subsection (2) o f that section; also governed by the provisions o f the Act." In the case before us, as there was no evidence on record that the appellant had first exhausted remedies available within the respondent's institutional grievance handling procedure, or under the PSA, before she was to refer her complaint to the CMA, the latter Commission entertained her complaint without jurisdiction to do so. In view of that, we find the first ground of appeal meritorious and hereby allow it. On account of the above findings, the proceedings of the CMA are invalid, and we accordingly, nullify them. In the same vein, the ruling dated 20th May, 2019 in respect of the preliminary objection, and the substantive award of the CMA, are hereby set aside. We also quash the revisional proceedings of the High Court and set aside the subsequent judgment of that court. 6 In the upshot and for the foregoing reasons, we allow the appeal with no order as to costs, since the appeal arose from a labour dispute. Notably, as the first ground has disposed of the entire appeal, we find no usefulness in entertaining for resolution of any other grounds. DATED at DAR ES SALAAM, this 4th day of November, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered on this 4th day of November, 2024 in the presence of Mr. Francis Wisdom, learned State Attorney for the Respondent and absence of Appellant, is hereby certified as a true copy of the original.