CIVIL APPEAL NO 211 OF 2021 GEITA GOLD MINING LIMITED VS

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: WAMBALI. J.A.. MAIGE . J.A. And MURUKE, J.A.^ ' CIVIL APPEAL NO. 211 OF 2021 GEITA GOLD MINING LIMITED................................................. APPELLANT VERSUS JOACHIM KITWALA WALWA .................................................RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania at Mwanza) (Madeha, 3 dated the 29th day of May, 2020 in Labour Revision No. 100 of 2018 JUDGMENT OF THE COURT 10th& 14th February, 2025 MAIGE, J.A.: This appeal is against the decision of the High Court of Tanzania Labour Division at Mwanza (the Labour Court) dismissing the appellant's application for revision against the arbitral award of the Commission for Mediation and Arbitration at Mwanza (the CMA). In her memorandum of appeal, the appellant has enumerated six grounds to fault the decision of the Labour Court. Conversely, for the reasons which shall be apparent as we go along, we shall not cite the respective grounds of appeal. At the hearing, the appellant enjoyed the services of Ms. Elizabeth John Mlemeta, learned advocate, whereas the respondent had the services of Mr. Erick Katemi, also learned advocate. Notably, both parties have, through their counsel, filed detailed written submissions in support or opposition of the appeal, as the case, might be. We regret, however that, in view of the nature of the decision which we are going to render, we shall not consider the said submissions. Perhaps, before we go further, a brief factual materials underpinning the current appeal may be necessary. The respondent had, since 7th day of May, 2012, been in the service of the appellant as a security guard. On 30th May, 2017, his service was terminated for negligence and dishonesty in performance of his duty. Aggrieved, he successfully instituted a complaint at the CMA for unfair termination and was awarded 20 months salaries as compensation for unfair termination, one month salary in lieu of notice and severance allowance. Unhappy with the decision, the appellant initiated revision proceedings at the Labour Court. As per the affidavit in support of the revision, the appellant faulted the CMA on the following grounds: One, for holding that the respondent was not negligent or involved in the unlawful attempt to steal from the appellant; Two, for erroneously assessing the evidence in CCTV footage thereby coming to a wrong conclusion that the disciplinary action should have been taken against he who was in charge of the CCTV camera system; Three, for holding that there was no evidence adduced to establish the respondent's role and obligation in the area in which the theft occurred; Four, for wrongly assessing the evidence pertaining to the alleged conduct of the respondent at the material date and ending up in a wrong conclusion that he was not involved in the alleged theft; Five, in not resolving the material contradictions in the respondent's evidence; Six, for incorrectly assessing the documentary evidence constituting the termination under discussion; Seven, for wrongly holding that the termination of the respondent's service was unfair; and Finally, for awarding the respondent excessive reliefs. As the record of appeal speaks, the hearing of the revision was by way r of written submissions. In her detailed submissions through her counsel, the appellant argued the first and seventh grounds jointly and each of the remaining grounds separately. In her judgment, the High Court Judge just narrated the facts of the case and summarized the counsel's submissions and thereafter made the following conclusion, without addressing any of the grounds or making reference to the evidence on the record: "7/7 viewing that, the respondent was unfairly term inated substantively and procedurally, the em ployer (the applicant) did not have valid reason to terminate the respondent as the applicant failed to prove the alleged offence. The applicant did not comply with the procedures in terminating the respondent as the employer failed to prove the occurrence o f negligence. The applicant did not comply with the procedures for termination in terms o f section 37 (2) (c) o f the Employment and Labour Relations Act, No. 6 o f 2004 and Rule 13 o f the Employment and Labour Relations Code o f Good Practice, G.N. No. 42 o f2007 was not follow ed by the applicant in term inating the respondent." Having said that, the High Court Judge ordered the appellant to reinstate the respondent to his service or else comply with the provisions of section 40 (1) of the Employment Labour Relations Act, Cap. 366. V In view of the apparent irregularity in the said judgment, we found ourselves unable to do without requesting the counsel to address us whether the High Court Judge dealt with and resolved the points for determination raised in the grounds for revision and if not what should be the way forward. As it turned out, both Ms. Mlemeta and Mr. Katemi were of the concurrent submissions that, the judgment of the Labour Court did not address and determine the grounds of revision. Neither did it contain reasons as to why such grounds were not considered. In their humble submissions, the respective judgment is not a judgment in law. Therefore, they advised us to make use of our powers under section 4 (2) of the Appellate Jurisdiction Act (the AJA) and, by way of revision, quash the said judgment and remit the record to the Labour Court for composition of a fresh judgment. To start with, it is trite law that a judgment of a court of law regardless of whether it is on trial, appeal or revision must contain points for determination, decisions thereon and reasons thereof. While in a trial, points for determination arise from the issues framed from pleadings; in an appeal and revision, points for determination emanate from grounds of appeal or revision, as the case may be. This means that, the higher court has to address the issues raised in the grounds of appeal or revision and make reasoned decisions thereon. It has to be noted however that, in discharging such a duty, it is not necessary for the higher court to determine each and every point for determination separately. It would, depending on the circumstances of the case, suffice if such points for termination were dealt with either separately or jointly. In that respect, we stated in the case of Nyakwama s/o Ondare @ Okware v. R (Criminal Appeal No. 507 of 2019) [2021] TZCA 592 (21 October 2021, TANZLII) as follows: " We therefore, agree with Mr. Byamungu that failure to consider appellant's grounds o f appeal was a fatal irregularity rendering the first appellate court's judgm ent a nullity. In this regard, we wish to emphasise that though it is not the duty o f the first appellate court to resolve the issues as fram ed by the tria l court, yet it is expected and bound to address and resolve the com plaints in the grounds o f appeal either separately or jo in tly depending on the circumstances o f each case. ” See also, Salumu Njwete @ Salum @ Scorpion v. R (Criminal Appeal No. 182 of 2019) [2021] TZCA 592 (21 October 2022, TANZLII) and Ahadi Burton v. R (Criminal Appeal No. 94 of 2021) [2022] TZCA 523 (8 July 2024, TANZILII), Malmo Montage AB Tanzania Branch v. Margret Gama, Civil Appeal No. 86 of 2001 and Alnoor Shariff Jamal v. Bahadur Ebrahim Shamji, Civil Appeal No. 25 of 2006 (both unreported). Though in the above decisions the Court was dealing with appeals, it is P our considered opinion that the respective principle applies in revision as well since the duty of the higher courts both in an appeal and revision is examination of the proceedings of the lower court to ascertain its correctness, legality or propriety. As the Labour Court in the revision at issue was called upon to determine the correctness or otherwise of the proceedings and award of the CMA, it was required, as the court of second incidence, to examine the proceedings, reappraise the evidence and determine the matter in controversy. Having carefully examined the impugned judgment, we are in agreement with the learned counsel for both parties that the Labour Court did not address and resolve the grounds of revision raised in the affidavit in support of revision as amplified in the written submissions. In effect, therefore, the revision at the Labour Court is as good as undecided. As such, the omission in question is a fatal irregularity which renders the purported judgment a nullity. We, therefore, invoke our powers of revision under section 4 (2) of the AJA and quash the said judgment and set aside the decree. We further remit the record to the Labour Court for composition, by a different judge, of a fresh judgment based on the parties' written submissions on the record as expeditiously as possible, considering that this is an old case. DATED at MWANZA this 14th day of February, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 14th day of February, 2025 in the presence of Mr. Innocent Bernard, learned counsel holding brief of Ms. Elizabeth John Mlemeta, learned counsel for the appellant and in the absence of the respondent, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL