CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: MKUYE. 3.A.. KITUSI. 3.A.. And ISSA. J.A.^ CIVIL APPEAL NO. 467 OF 2021 GEITA GOLD MINE LIMITED.................................................. APPELLANT VERSUS DAMIAN BUTAGE............................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) dated the 27thday of April, 2021 in Consolidated Labour Revision Nos. 67 & 70 of 2020 JUDGM ENT O FTH E COURT 7U‘ & 16th August, 2024 KITUSI. 3.A.: The respondent was an employee of the appellant, an incorporated mining Company from 2010 but the contract came to an end on 19/11/2018 when the appellant terminated it, for alleged acts of gross misconduct. Aggrieved, the respondent challenged the termination at the Commission for Mediation and Arbitration (CMA) claiming it to be unfair. He prayed either for reinstatement or for monetary compensation for the alleged unfair termination, damages for the appellant's tort of denial of right to work and right to life as well as other statutory remunerations. The CMA awarded the respondent's claim ordering the appellant to either reinstate the respondent or that he should be paid in accordance with section 40 (3) of the Employment and Labour Relations Act, Cap 366 (ELRA) and Regulation 32 (5) (a) (b) (c) (d) and (e) of G.N. No. 42 of 2007. It further ordered compensation equivalent of 8 months salaries, one month salary in lieu of notice, severance allowance for 8 years, repatriation costs and subsistance allowance. The parties were each aggrieved and referred their grievances to the High Court seeking revision of the award, vide Labour Revisions No. 67 and 70 of 2020. The revisions were consolidated, at the end of which the High Court upheld the award of the CMA except for some modification. Still aggrieved, the appellant has preferred this appeal. Initially there were 8th grounds of appeal attacking the substance of the judgment and orders of the High Court in the consolidated appeals, but subsequently by invoking rule 106 (3) (b) (ii) of the Tanzania Court of Appeal Rules 2009 (the Rules), the appellant prayed for and was granted leave to argue an additional ground which we shall refer to as the 9th ground. However, since the 9th ground questions the validity of the proceedings at the CMA, we shall deal with it first and proceed with the rest of the grounds upon getting satisfied that the said proceedings were valid. The said 9th ground of appeal alleges impropriety of the proceedings before the CMA on the ground that all witnesses before it gave evidence without taking oath. This issue is, in our view, both factual and legal as it shall be demonstrated by the arguments made by the advocates for the parties. Mr. Libent Rwazo, learned advocate representing the appellant submitted that as a matter of fact all witnesses did not take oath immediately before adducing evidence. He took us through the pages of the proceedings to demonstrate his argument. He referred to page 792 where PW1 testified, 799 (PW2), 810 (PW3) and 819 (Respondent's testimony). All these witnesses did not take oath before they were led to give evidence, he submitted. He cited 3 decisions of this Court to support his position, but we shall refer to only some of those he addressed in his oral submissions. These are (1) WEIR Services Tanzania Limited v. Jacques Louis Bruwer Civil Appeal No. 247 of 2020 [2023] TZCA 17762 (19 October 2023); (2) Onael Moses Mpeku v. National Bank of Commerce Limited Civil Appeal No. 274 of 2020 [2023] TZCA 17406 (13 July 2023) and; (3) Unilever Tea Tanzania Limited v. David John Civil Appeal No. 413 of 2020 [2021] TZCA 496 (20 September 2021). On the other hand, Mr. Kassim Gilla, learned advocate for the respondent argued that those witnesses took oath. Counsel's argument was twofold; one being that before each witness had given evidence in chief, he was made to state his religion. The learned counsel argued that such particulars would not have been for any reason other than for administering oath to those witnesses, so he invited us to deem that they were sworn or affirmed. The other limb of counsel's argument is that the CMA award was written in such a way that whenever reference was made to evidence of a particular witness, the presiding Arbitrator would indicate the fact that he had taken oath first. The learned counsel also distinguished the cases cited by appellant arguing that in those cases, unlike in the instant case, the religions of the witnesses were not cited nor did the Arbitrator's award refer to the witnesses having taken oath. Mr. Gilla referred to 5 decisions of this Court to make his point but it suffices for us to refer to the following two: (1) Joseph Kahungwa v. Agricultural Inputs Trust Fund & 2 Others, Civil Appeal No. 373 of 2019 [2021] TZCA 325 (23 July 2021) and; (2) Severo Mutegeki & Another v. Mamlaka ya Maji Safi na Usafi wa Mzingira Mjini Dodoma (DUWASA) Civil Appeal No. 504 of 2020 [2020] TZCA 310 (19 June 2020). In rejoinder, Mr. Rwanzo submitted that taking of oath in legal proceedings may not be inferred but should be reflected on the record. He also sought to distinguish the cases cited by Mr. Gilla by submitting that all of them were on omission by the Arbitrator to sign after taking evidence of each witness. The learned counsel prayed for an order remitting the record to the CMA for retrial. It is true as submitted by Mr. Gilla, that testimonies of all witnesses were preceded by citation of their respective religion. It is also true that in his style of writing the award, the presiding Arbitrator indicated, in respect of each particular witness, that he had taken oath before adducing evidence. The argument by Mr. Gilla that for those two reasons we should deem that the witnesses took oath, is attractive but in our respectful view, not in keeping with established practice. It also offends Rules 19 (2) and 25 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007 [GN. No. 67 of 2007] (Mediation2 Rules) which provide "19 (2) The powers of the Arbitrator Include to- (a) Administer an oath or accept an affirmation from anyperson called to give evidence 25 (1) The parties shall attempt to prove their respective cases through evidence and witnesses shall testify under oath through the following process In our view, if we uphold Mr. Gilla on those two grounds, we shall be running the risk of subjecting the application of those provisions to the presiding Arbitrators' styles of their choice in recording evidence and preparing awards. At this juncture we consider it relevant to refer to the Court's previous decision in: Eric Dominic Massawe v. Richard Kelly and Mwanza City Council Civil Appeal No. 343 of 2020 [2024] TZCA 44 (15 February 2024) emphasizing the sacred nature of oath. The Court reproduced the following passage from Robert C. Sorensen's article titled: THE EFFECTIVENESS OF THE OATH TO OBTAIN A WITNESS' TRUE PERSONAL OPINION" JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY VOL 47 ISSUE 3 : - 'Its [OATH] function with respect to witnesses in the courtroom is several - fold. The oath is felt to be a deterrent to falsehood because the witness must commit himself to truth - telling in advance of his testimony. This involves various types of internalized response in that the witness swears to his God that he wiii tell the truth as he sees it. The deterrence is solidified by the oath's second function: the provision of an occasion whereby a witness may be tried for petjury should it be demonstrated that he failed to tell the truth after promising to do so. Thus, administration o f the oath serves not only to warn but also to hold over the head o f the witness his own sacred assurance that he would speak the truth". The Court went on to conclude that the rule as to taking oath in judicial proceedings is not one of technicality but substantive. We wonder if it would be prudent to conclude that such basic legal requirement has been complied with, merely by assuming from one's style of writing proceedings and decision. In the end we agree with the appellant's counsel, that all witnesses who gave evidence before the CMA, did so without taking oath, rendering the proceedings a nullity. We are settled that the taking of an oath is such a solemn exercise that should not be inferred but must be reflected in the proceedings. Accordingly, we nullify those proceedings from immediately before the first witness testified to the judgment, quash the judgment and set aside the orders arising therefrom and remit the record to the CMA for it to conduct a fresh hearing by properly recording the evidence according to law. That disposes of the appeal and we do not need to pronounce ourselves on the remaining 8 grounds of appeal. DATED at MWANZA this 15thday of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The judgment delivered this 16th day of August, 2024 in the presence of Mr. Elias R. Hezron, learned counsel holding brief for Mr. Libent Rwazo, learned counsel for the Appellant also holding brief for Mr. Kassim Gilla, learned counsel for the Respondent, is hereby certified as a true copy of the original. m . A. S. CHUGULU DEPUTY REGISTRAR COURT OF APPEAL 8