CIVIL APPEAL NO 59 OF 2022 MATHEW NYAMWASA VS TAZAMA PIPELINE LTD

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM fCORAM: MWANPAMBO. 3.A.. MWAMPASHI, 3.A. And FELESHI, J-A^ CIVIL APPEAL NO. 59 OF 2022 MATHEW NYAMWASA...... ...................... ........ ................APPELLANT

VERSUS TAZAMA PIPELINE L T D ........ ............ ...................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Maahimbi, 3.) dated the 8th day of December 2021 in Revision No. 465 of 2020

JUDGMENT OF THE COURT 12th & 20th February 2025 MWANPAMBO, 3.A.: The appellant, Mathew Nyamwasa, was aggrieved by the decision of the High Court, Labour Division, sitting at Dar es Salaam in an application for revision from the award of the Commission for Mediation and Arbitration (the CMA) in a labour dispute for unfair termination preferred against the respondent. He has preferred the instant appeal. The facts from which this appeal has been preferred are common ground but as it will be apparent shortly, they are largely irrelevant for the l determination of the appeal. We shall only highlight what we consider to be material for our purpose. The appellant was an employee of the respondent as a driver having worked for 23 years. On 27 November 2018, the respondent terminated him following a disciplinary hearing in which he was allegedly found to have been guilty of gross misconduct. Dissatisfied, he challenged the termination before the CMA for Temeke alleging that his termination was unfair both substantively and procedurally. The CMA found no sufficient evidence to prove existence of a valid and fair reason to warrant the termination but found that the respondent terminated the appellant following a fair procedure. It thus ordered the respondent to reinstate the appellant and pay him salaries for the period he was out of the employment following the impugned unfair

termination. On revision at the instance of the respondent, the High Court reversed the CMA's finding on the unfairness of the termination being satisfied that the respondent had adduced sufficient evidence proving that the appellant was guilty of gross misconduct and thus his termination was upon a fair and valid reason. From that decision, the appellant has appealed before the Court upon four grounds but raising one main issue, that is to say, correctness of the decision of the High Court that the 2 appellant's termination from employment was upon a fair and valid reason. Mr. Evans Robson Nzowa and Ms, Glory Venance both learned advocates, appeared before us for the hearing of the appeal representing the appellant and respondent respectively as they did before the High Court and the CMA. Before addressing the Court on the appeal, Mr. Nzowa drew our attention to the proceedings of the CMA which, according to him, did not reveal that the CMA received evidence from witnesses who testified before it upon oath or affirmation. Counsel argued that, the omission was fatal to the evidence so received and acted upon by the CMA and the High Court. So were the resultant award and judgment in the application for revision due to non-compliance with regulation 25(1) of the Labour Institutions (Mediation and Arbitration) Guidelines, G. N. No. 67 of 2007 (the Guidelines). Going forward, the

learned advocate moved the Court to exercise its revisional power under section 4(2) of the Appellate jurisdiction Act (the AJA) by quashing the proceedings of the CMA and setting aside the award from which the application for revision emanated. Having so done; Mr. Nzowa prayed for an order remitting the record to the CMA for hearing of the labour complaint afresh in accordance with the law. 3 While conceding the omission pointed out by the appellant's counsel, Ms. Venance had a different view on the consequences but was at pains on the authority in support of her stand point that despite the irregularity, the Court should disregard it and proceed with the hearing as none of the parties has been prejudiced. Having heard the brief arguments from counsel, there is no dispute that the arbitrator at the CMA received evidence from the witnesses for both parties without oath or affirmation. As urged by Mr. Nzowa, that was contrary to the provisions of regulation 25(1) of the Guidelines which enjoins parties to prove their respective cases by evidence through witnesses testifying under oath by way of examination in chief; cross examination and; re- examination. It is instructive that Regulation 19(1) of the Guidelines empowers the arbitrators to administer oaths to witnesses before receiving evidence. Luckily, the Court has pronounced itself on the consequences befalling evidence

taken in contravention of the above referred regulation. As urged by Mr. Nzowa, the non-compliance renders the evidence invalid. Faced with similar circumstances, in Catholic University of Health & Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase [2020] TZCA 1890; TANZLII, U December 2020, the Court found the omission fatal to the proceedings. It aptly stated: 4 .. Where the law makes it mandatory for a person who is a competent witness to testify on oath, the omission to do so vitiates the proceedings because it prejudices the parties' case. - See for example, the cases o f Nestory Simchimba v. Republic, (supra) cited by the appellant's counsel and Hamis Chuma @ Hando Mhoja and Another v. Republic, Criminal Appeal No. 371 o f 2015 (unreported)." After finding that the CMA relied on evidence from the witnesses who had not taken oath before receiving their testimonies, it nullified the entire proceedings and award of the CMA and quashed the judgment of the High Court with directions that the matter be heard afresh by the CMA. It is significant that the Court has been consistent on this stance as can be seen from its various subsequent decisions, amongst others, Joseph Elisha v. Tanzania Postal Bank [2021] TZCA 518, TANZLII 24 September 2021) and Bulyanhulu Gold Mines Limited v. Keneth Robert Fourie [2022] TZCA 460; TANZLII, 22 July 2022. It will be clear from the foregoing

that, contrary to the urging by Ms. Venance, the law is so settled in this regard that there can be no room for accepting her invitation for us to hold otherwise. The law as it stands today is such that once it is clear from the record as it were that evidence before the CMA was not taken on oath or affirmation contrary to the dictates of Regulation 25(1), there is only one way, that is to say; to declare it invalid 5 from which no award worth the name could be made determining the rights of the parties this way or the other and be capable of enforcement or challenge before the Labour Court by way of revision. As night falls day, since we are satisfied that the reception of the evidence before the CMA was in violation of the mandatory provisions of the regulations, we invoke the Court's revisional power under section 4(2) of the AJA and quash the entire evidence and set aside the award as well as the judgment of the High in the revision proceedings subject of the instant appeal for being a nullity. Going forward, we direct that the record be remitted to the CMAfor hearing of the matter before another arbitrator. Order accordingly. DATED at DAR ES SALAAM this 19th day of February, 2025. L. J. S. MWANDAMBO

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL E. M. FELESHI

JUSTICE OF APPEAL The Judgment delivered this 20th day of February, 2025 in the presence of Mr. Evans R. Nzowa, learned counsel for the Appellant and Mr. Michael Kariwa, learned counsel for the Respofidentis hereby certified as a true copy of the original. / \/ E. G. MRANGUV/

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL 6