CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LILA, 3.A.. FIKIRINI. J.A. And MLACHA, J.A.^ CIVIL APPEAL NO. 322 OF 2023 NATIONAL BANK OF COMMERCE LIMITED APPELLANT VERSUS MONGATEKO MAKONGORO MON GATE KO 1st RESPONDENT LUCY GEORGE MUSHI................................ 2nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) f Rwizile. J.T dated 28th day of February, 2023 in Labour Revision No. 304 of 2022 JUDGMENT OF THE COURT 30th October &...2r* .November, 2024 FIKIRINI. 3.A.: This appeal arises from the decision of the Labour Division of the High Court of Tanzania, dated 28th February 2023. In that decision, the respondents, Mongateko Makongoro Mongateko and Lucy George Mushi (hereinafter referred to as the 1st and 2nd respondents), who were employees of the appellant, the National Bank of Commerce, had their employment terminated on 28th April 2021 for gross negligence. Dissatisfied with their dismissal, the respondents referred their complaint to the Commission for Mediation and Arbitration (CMA), contesting the termination as unfair and discriminatory. The parties were heard, and the CMA issued an award partly in favour of the appellant. Aggrieved by the CMA's decision, the appellant filed Labour Revision No. 295 of 2022, while the respondents filed Labour Revision No. 304 of 2022. The two revisions were consolidated and argued based on written submissions,pursuant to an order dated 3rd November, 2022. The decision resulting from the consolidated revisions is now being challenged. The appellant's grounds of appeal, as outlined in the memorandum of appeal, are as follows: 1. The High Court erred in law by allowing an award for general damages for discrimination when it had already found that the respondents were not discriminated against as alleged in their complaint. 2. TheHigh Court erred in law by quashing the order for compensation of 24 months’ salary and substituting it with 24 months' remuneration, without considering the loss incurred by the appellant due to the respondents' actions, and in contravention of Section 3(a) of the Employment and Labour Relations Act, Cap. 366 (Revised Laws) [ELRA]. In contrast, the respondents lodged a notice of cross-revision, raising the following grounds: 1. The High Court Judge erred in law and acted unlawfully by making findings on the issue of discrimination, which was neither a ground of revision nor addressed by either party in their submissions, thereby concluding that there was no discrimination by the appellant. 2. The High Court Judge erred in law by failing to properly evaluate the evidence on record and thus erroneously held that there was no discrimination against the respondents. 3. The High Court Judge erred in law by failing to consider the extent of the loss suffered by the respondents as a result of their unfair termination, which involved both substantive and procedural unfairness, particularly in the context of the banking industry. As a result, the Judge sustained the 24- month remuneration award as compensation, contrary to the respondents' prayers. Both parties submitted written submissions and lists of authorities through their learned counsel. The respondents, in particular, provided written submissions in support of their cross-revision. 3 Mr. Joseph Ndazi, learned counsel for the appellant, and Mr. Rahim Mbwambo, learned counsel for the respondents, were present at the hearing. However, as will become apparent shortly, we will not address all the grounds of appeal listed above. Our deliberation will primarily focus on the first ground in the cross-revision, which asserts that the High Court Judge improperly dealt with the issue of discrimination, an issue not raised as a ground of revision nor addressed by either party in their written submissions. The crux of this complaint is that, in the impugned decision, the High Court erroneously delved into the issue of discrimination, finding that there was no evidence of discrimination by the appellant. The grievances before the High Court concerned the quantum of the award for compensation and the amount assessed and awarded as general damages. The issue of discrimination was not part of the proceedings, yet the Judge considered it and concluded that no discrimination had been proven. We believe that this ground of appeal should be resolved first. It is a fundamental principle of natural justice that a party should not be condemned without being heard. The principle of "audi alteram parterrl' requires that both parties, along with their witnesses, be heard before any decision is made against them. In its decision, the court must adhere to the issues framed by the parties or the grounds on record; if the court wishes to raise any new issues, whether based on the pleadings or the evidence presented, they must be formally brought to the parties' attention, who must then be allowed to address the court on them. This Court has consistently emphasized the importance of the right to be heard as a cornerstone of natural justice. Denying a party this right renders the proceedings to be vitiated. This principle was reiterated in Abbas Sherally & Another v. Abdul S. H. M. Fazalboy, (Civil Application No. 33 of 2002), where the Court held: "The right o f a party to be heard before adverse action is taken against them has been emphasized in numerous decisions. A decision arrived at in violation o f this right w iii be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered a breach o f natural justice" See also: Margwe Erro & 2 Others v. Moshi Bahalulu, (Civil Appeal No. I l l of 2014) [2015] TZCA 282; Director of Public Prosecutions v. Yassin Hassan @ Mrope, (Criminal Appeal No. 202 of 2019) [2020] TZCA 1733; Samwel Gitau Saitoti @ Saimoo @ Jose & 2 Others v. The Director of Public Prosecutions, (Criminal Application No. 73 of 2020) [2021] TZCA 554; and Mbeya Rukwa Auto Parts and Transport Limited v. Jestina George Mwakyoma, [2003] T.L.R. 251. Once the right to be heard is infringed, it amounts to a violation of natural justice. Upon reviewing the record in this appeal, we note that no grounds related to discrimination were raised in the revisions before the High Court, even though the CMA had initially found that the respondents had been discriminated against. The issues before the High Court were: (i) Whether the Arbitrator considered the reasonableness and legality of the compensation awarded to the respondents. (ii) Whether the Arbitrator considered the reasonableness and legality of the general damages awarded to the respondents. We fully agree with Mr. Mbwambo's argument that the issue of discrimination was not one of the grounds for revision. The evidence of discrimination presented before the CMA, which led to its conclusion that discrimination had occurred, was not contested by either party and, 6 therefore, was not a matter for revision. If the High Court Judge considered the issue of discrimination relevant, he should have invited the parties' counsel to address it. We encountered a similar scenario in EX-B.8356 S/SGT Sylvester S. Nyanda v. The Inspector General of the Police (Civil Appeal No. 64 of 2014), where the Court highlighted the court's limitation to the issues raised by the parties. In that case, the Court stated that the Judge should limit himself to the issues before the High Court raised by the parties. In the present appeal, the issues before the High Court were the reasonableness of the compensation and the general damages awarded. There was no amendment to the grounds of revision or an invitation for the parties to address the Judge on the issue of discrimination. Sadly, the Judge raised "suo motW the discrimination issue and ruled on it without allowing the parties to address him. This resulted in an infringement of the parties' right to be heard, constituting a fundamental procedural error. As such, the decision is a nullity. We, therefore, allow the appeal, quash the judgment of the High Court, and set aside all subsequent orders arising therefrom. The record is hereby remitted to the High Court to be placed before a different Judge for the composition of a fresh judgment based on the written submissions already on record, addressing the two grounds of revision raised and if he wishes the issue of discrimination to be considered, the parties be allowed to address him on it. Following the above discussion, we find that this ground of appeal with merit and sufficiently disposes of the appeal before us. DATED at DAR ES SALAAM this 18th day of November, 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered this 21st day of November, 2024 in the presence of Ms. Anna Aloyce Meela, learned counsel for the Appellant and Mr. Victor Kikwasi, learned counsel for the Respondent is hereby certified as a true