IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM: MUGASHA, J.A. SEHEL. 3.A. And KAIRO. J.A.^

CIVIL APPEAL NO. 511 OF 2020

NATIONAL MICROFINANCE BANK LTD (NMB)............................. APPELLANT

VERSUS

NEEMA AKEYO........................................................................ RESPONDENT

(Appeal from the Judgment of the High Court of Tanzania

at Arusha)

(Nyerere, J.)

dated the 2nd day of June, 2017

in

Revision No. 35 of 2017

JUDGMENT OF THE COURT

18th & 21st February, 2022

MUGASHA, 3.A.:

This is an appeal against the decision of the High Court which

dismissed an application for revision and confirmed the decision of the

Commission for Mediation and Arbitration (the CMA). The background

underlying this appeal is briefly as follows: The respondent was

employed by the appellant as a Bank teller at its Branch in Karatu. The

employment commenced on 27/10/2010 up to 5/6/2015 when the

appellant terminated the respondent on accusations of absenteeism and

insubordination. This made the respondent to refer the matter to the

CMA claiming that the termination was procedurally and substantively

unfair and prayed to be paid compensation for breach of employment

agreement.

The appellant denied the allegations, contending that termination

was for valid reasons and requisite procedures were complied with. It

was the appellant's contention that, the termination was prompted by

the respondent's failure to attend at work on Saturdays which was in

contravention with the local employment agreement and the Human

Resource Policy and NMB PLC Code of conduct.

After a full trial, the arbitrator was satisfied that, the respondent

was unfairly terminated both substantively and procedurally in the wake

of absence of proof from the appellant that the respondent was not

attending work on Saturdays. Further to that, it was also found that

after the respondent was found guilty, she was not given opportunity to

give mitigating factors. As a result of the said unfair termination, the

CMA awarded the respondent 36 month's salary as compensation.

Undaunted, the appellant, lodged an application to the High Court

seeking to have the CMA decision revised. However, the application was

dismissed and instead, the CMA's award was confirmed on ground that
the termination was substantively and procedurally unfair. Apart from

the High Court concluding that the appellant had failed to prove that the

respondent was not attending at work on Saturdays, it found the

appellant's conduct to have amounted to discrimination against the

respondent on religious basis which was contrary to the Constitution of

the United Republic of Tanzania, 1977 and the Labour Laws. Still

dissatisfied, the appellant has preferred an appeal to the Court. In the

Memorandum of Appeal, she has fronted five grounds of complaint as

follows:

1. That, the Judge erred in law and in fact by holding that

the NMB Human Resource and Policy o f 2013, staff

Rules and the NMB Code o f Good Practice contravene

section 7 (9) o f the Employment and labour Relation

Act.

2. That, the Judge in determining ground No. 1 o f Revision

erred in law and fact by ignoring exhibit D -l the final

written warning issued to the respondent herein,

exhibits D-6 disciplinary hearing thus arriving at the

wrong finding.

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3. That, the Judge erred in law and fact by holding that

the complaint was terminated on ground of

discrimination based on region> which was not

framed as an issue neither at the Commission for

Mediation and Arbitration nor at the High Court

and which was not in the jurisdiction if the court to

determine

4. That, the Judge erred in law and in fact by holding that

the applicant was not entitled to summon the

respondent herein in the disciplinary hearing in view o f

Rule 1 o f General Offences under GN No. 42 o f 2007

the Employment and Labour Relation (Code o f Good

Practice) Rules.

5. Thatthe Judge erred in law and in fact by holding that

the applicant herein did not comply with legal

procedures before terminating the respondent herein

while the record clearly depicts the opposite."

 At the hearing the appellant was represented by Paschal Kamala,

learned counsel whereas the respondent had the services of Mr. Yoyo

Asubuhi, learned counsel.

Before the hearing of the appeal commenced, following a brief

dialogue with the Court, the appellant's counsel abandoned the 2nd

ground of appeal which contains factual issues and thus not according to

the dictates of section 57(1) of the Labour Laws which enjoins the Court

to entertain only questions of law. Then, the appellant's counsel adopted

the written submission earlier filed and proceeded to make clarifications

on the remaining four grounds of complaint.

In addressing the first ground of appeal, the appellant faults the

learned judge of the High Court having held that, the NMB Human

Resources and Policy of 2013, staff Rules and the NMB Code of Good

Practice contravene section 7(9) of the Employment and Labour

Relations Act (Cap 366 R.E. 2002). Apparently, in the written

submissions the appellant canvassed is a different matter not related to

the ground of appeal and instead it addresses the compatibility of the

prescribed hours of work in a week ranging from 40 to 45 hours in both

section 19(2) (a) (b) and (c) of ELRA and the NMB Staff Rules. We shall

revert to the matter at a later stage.

5
 As for the 3rd ground of appeal, the appellant faulted the learned

High Court Judge in holding that,the termination was based on

discrimination on religious grounds as that was not among the issues

framed be it at the CMA nor the High Court. In this regard, it was that,

apart from the High Court not being seized with jurisdiction to determine

the issue not originally framed before the CMA, yet the appellant was

denied right to adduce evidence which was a violation of a constitutional

right to be heard. On this account, the appellant urged the Court to

nullify the decision of the Court. To support his propositions, the cases

cited were; ABDUL ATHUMANI VS REPUBLIC (2004) TLR,

REMIGIOUS MUGANGA VS BARRICK BULYANHULU GOLD MINE,

Civil Appeal No. 47 of 2017 (unreported) and MBEYA RUKWA

AUTOPARTS VS JESTINA GEORGE MWAKYOMA (2003) TLR 251.

When probed by the Court if the appellant was aware of the

nature of respondent's defence who stated to have been unfairly

terminated on the basis of discrimination to exercise right of worship,

and if the appellant had cross-examined the respondent, the learned

counsel was very evasive and reiterated that no issue was earlier framed

in that regard.

6
 Regarding the 4th ground of complaint, the appellant is challenging

the decision of the High Court in holding that, the appellant was not

entitled to summon the respondent at the disciplinary hearing in view of

Rule 1 of the General, Offences, of the Code of Good Practice Rules. It

was submitted that, the correct Rule is 13(1) which regulates issues of

investigation in matters of misconduct whereas that cited by the High

Court Judge is relevant in determining whether the offence committed is

serious to warrant termination or not. It was difficult for us to discern

the nature of the appellant's complaint and again, we shall address this

at a later stage.

In respect of ground 5, the appellant is faulting the learned High

Court Judge in holding that the law was not complied with in terminating

the respondent from employment. It was submitted that, the appellant

had complied with all the legal requirements as opposed to the decisions

of both the CMA and the High Court, that the termination was unfair

both procedurally and substantively. Ultimately, on the basis of the

arguments fronted in support of the appeal, Mr. Kamala urged us to

allow the appeal and set aside the decisions of the CMA and the High

Court.
 On the other hand, Mr, Yoyo Asubuhi vigorously opposed the

appeal contending the same to be misconceived. He made a generalised

reply to the grounds of complaint. He began by challenging the appeal

that it raises factual issues as opposed to the questions of law thus,

offending the dictates of the law which mandates the Court to entertain

and determine questions of law and not facts.

Regarding the complaint on the non-framing of the issue of

discrimination, he challenged the same arguing that, the appellant was

aware of that issue which was firstly, raised by the respondent in the

answers to the charges against her as reflected at page 62 of the record

of appeal; secondly, the issue of discrimination was raised by the

respondent at the hearing of the disciplinary committee and thirdly, it

was in the evidence of the respondent who besides contesting the

termination, testified that, the termination was based on religion

considering that termination as those of other religious sect were

allowed to leave the place of work for the purposes of worshipping. The

learned counsel, further contended that, before the High Court, apart

from learned Judge amplifying on the nature of discrimination, in the

exercise of revision powers she was mandated to consider the propriety

or otherwise of the proceedings and the decision of CMA as per the

dictates of section 94 (1) of ELRA and rule 28 of the Labour Court Rules.

Thus, it was Mr. Asubuhi's argument that, the appellant was pretty

aware about the nature and circumstances surrounding the termination

which was the basis of the respondent's complaint and yet did not cross-

examine the respondent.

The respondent's counsel as well submitted that since the burden

to prove that the termination was unfair lies upon the employer, it was

incumbent on the appellant to discharge the burden which she failed to

do having not canvassed material evidence including not parading as a

witness, the immediate supervisor of the respondent at the disciplinary

committee. The respondent's counsel supported the position of CMA

which was to the effect that, the termination not within the warning

period because 10 months had expired after the warning. Finally, Mr.

Asubuhi urged the Court to dismiss the appeal and uphold the

concurrent decisions of the CMA and the Labour Court.

Mr. Kamala had nothing to make a rejoinder on what was

submitted by the respondent's counsel. He declined to do so even upon

being probed by the Court on the crucial matters raised by the

respondent's counsel.

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 Having heard the contending submissions of the learned counsel,

the main issue for determination is whether or not the termination of the

respondent was unfair both procedurally and substantively and whether

the appellant was denied a right to be heard. We shall dispose of the 1st

and 4th grounds together and the 3rd and 5th grounds of appeal will each

be determined separately.

At the outset, we wish to restate that, in terms of section 57 of the

Labour Institutions Act, appeals to the Court shall only be on points of

law. The said provision stipulates as follows: -

"Any party to the proceedings in Labour Court

may appeal against the decision o f the High
Court to the Court o f Appeal on points o f law
only.

What constitutes a question of law upon which a party could appeal to

the Court was considered in the cases of ATLAS COPCO TANZANIA

LIMITED VS COMMISSIONER GENERAL, TANZANIA REVENUE

AUTHORITY, Civil Appeal No. 167 of 2019; and KILOMBERO SUGAR

COMPANY LIMITED VS COMMISSIONER GENERAL (TRA), Civil

Appeal No. 14 of 2007 (both unreported). In the latter case, the Court

defined the phrase "matters involving questions of law only" upon which

10
a party could appeal to the Court from any decision of the Tax Revenue

Appeals Tribunal in terms of section 25 (2) of the Tax Revenue Appeals

Act, Cap. 408 R.E. 2006. Having referred to the decision of the Supreme

Court of Kenya in GATIRAU PETER MUNYA V. DICKSON MWENDA

KITHINJI & THREE OTHERS [2014] eKLR, the Court, then, defined

the phrase "question of law" as follows:

"... a question o f law means any o f the

following: first, an issue on the interpretation o f
a provision o f the Constitutiona statute;
subsidiary legislation or any legal doctrine on tax
revenue administration. Secondly, a question on
the application by the Tribunal o f a provision o f
the Constitution, a statute, subsidiary legislation
or any legal doctrine to the evidence on record.
Finally, a question on a conclusion arrived at by
the Tribunal where there is failure to evaluate
the evidence or if there is no evidence to support
it or that it is so perverse or so illegal that no
reasonable tribunal would arrive at it."

The cited decision defining what entails a question of law was adopted

by the Court in the labour cases of CGM TANZANIA LIMITED VS

JUSTINE BARUTI, Civil Appeal No. 23 of 2020 and PANGEA

li
MINERALS LIMITED VS GWANDU MAJALI, Civil Appeal No. 504 OF

2020 (both unreported).

We have deliberately restated the above because apparently,

although the appellant's counsel abandoned the 2nd ground of appeal

which was purely a factual issue, yet the substantive part of the

appellant's written submissions on the ground of appeal addresses

factual issues relating to the evidence paraded before the CMA and the

respective determination by the two courts below. As such, in the event

there is no complaint on the misapprehension of the evidence on the

part of the two courts below, the determination on factual matters

ended at the High Court. As such, in compliance with the dictates of the

law, without prejudice, we shall not deal with the complaint relating to

factual questions, save where we deem it necessary for the better

meeting the ends of justice.

In grounds one and four, we could not discern any prejudice on

the part of the appellant sufficing to be a ground of complaint. In

relation to ground one, although the learned High Court Judge stated

that the NMB Human Resource Policy contravenes section 7 (9) of the

ELRA, that was a slip of the pen because the provision defines what is

12
an employment policy or practice. That apart, in the written

submissions, the appellant addressed a totally different issue prescribed

working hours in week stated in the ERLA and the appellants' Human

Resource staff rules which is not compatible with the purported ground

of complaint.

In respect of the 4th ground, together with the related written

submission basically we could not discern any complaint therein as the

appellant merely faults the learned Judge in holding that, the appellant

was not entitled to summon the respondent. Apparently, the issue

before the CMA and the High Court was whether the termination was

fair both substantively and procedurally, and not whether the appellant

was justified to open up investigation against the respondent. In a

nutshell, in the 1st and 4th grounds the appellant seems to be raising

new issues which were not dealt with in the courts below and as such,

do not at any stretch of imagination qualify to be grounds of appeal.

Next is the 3rd ground of appeal and the gist of the appellant's

complaint is that the ground of discrimination based on religion was not

framed as an issue at the CMA and as such; the High Court lacked

jurisdiction to determine it and yet, the appellant was denied a right to

13
be heard. Parties locked horns on the issue having submitted

contending arguments.

We begin with what was decided by the learned High Court Judge

and the aspects considered. At page 379 - 381 of the record of appeal,

the learned High Court Judge considered: one, the right of worship as

enshrined under Article 1 of the Discrimination (Employment and

Occupation) Convention, 1958, Article 19(1) of the Constitution and

sections 7(4) (a) of ERLA, two, the respondent's submission at page

380 of the record to the effect that, the appellant's act to allow some of

the employees including the Branch Manager to exercise their freedom

of worship and at the same time deter the respondent from enjoying

such rights. Thus, she concluded as follows:

" Therefore (the) respondent was terminated for

breach o f NMB Code o f Good Practice, in which the
said policy and staff Rules contravene section 7(9) o f
the ERLA ... therefore 1... conclude that the applicant
ground o f terminating respondent on ground o f
absenteeism due to the facts the respondent used the
two hours for worship it is not only to infringe the
constitution o f the United Republic o f Tanzania; but
also the applicant contravened section 7 o f the ERLA

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 which prohibit discrimination on ground o f religion in
the work place."

In view of the said excerpt, it is not true as suggested by Mr.

Kamala that, the issue of discrimination cropped up at the High Court.

In fact, the learned High Court Judge applied the law on the factual

account on how the respondent was treated differently from other staff

in exercising the right of worship during working hours. In the

circumstances, as correctly found by the learned Judge of the High

Court, the act of the appellant as an employer contravened the

provisions of section 7 (4) of the ELRA which abhors discrimination at

place of work in the following terms:

"No employee shall discriminate, directly or

indirectly, against an employee in any
employment policy or practice, on any o f the
following grounds; colour, nationality, tribe or
place o f origin, race, national extraction, social
origin, political opinion or religion, sex, gender,
pregnancy, marital status or family responsibility,
disability, HIV/AIDS, Age, or station o f life."

[Emphasis supplied]

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In respect of the appellant's complaint that the issue surrounding

termination based on discrimination cropped up at the High Court, we

found it wanting. We are fortified in that regard because: one, the

respondent's reply on accusations levelled against her by the appellant,

is reflected at page 47 of the record of appeal as follows:

"... it is therefore apparent to draw a conclusion that

every person has absolute right o f worship without

being interfered by any other person, ... I find it very
unjust to be charged on ground o f my faith as the
same amount to nothing but discrimination which is
prohibited."

Secondly, before the CMA, it is glaring that apart from the respondent

denying the charges on absenteeism her response is reflected at page

331 of the record of appeal is to the effect that, on Saturdays she

reported at work place and at ten o'clock, she sought and obtained

permission from the manager to attend religious services. She as well,

testified that the Muslims were given such permission on Friday's, then

when asked on the issue of discrimination she replied in the affirmative

as follows:
 "kwa sababu wengine walikuwa wanaruhusiwa kusa/i

e.g. wais/am, mimi kwenda, kusali Hikuwa tatizo. "

The unofficial English rendering is that, while others e.g the Muslims

were given permission to go for prayers, on my part going for prayers

was considered as a problem.

Thirdly, yet before the High Court, in the written submissions the

appellant canvassed the issue of termination based on religious

discrimination at pages 351 to 352 of the record calling upon the learned

High Court to determine which she is now denying and shifting the goal

post.

In the light of what, we have endeavoured to unveil, we agree

with Mr. Asubuhi that, apart from the High Court being seized with

jurisdiction to exercise revision powers, the appellant was not denied the

right to be heard on the issue of termination based on discrimination

and the appellant's complaint suggested by Mr. Kamala is with respect,

apart from being untrue, in our considered view, it is an afterthought.

Besides, as the appellant did not cross-examine the respondent on the

question of being discriminated by the employer, that means the

appellant admitted what was asserted by the respondent in the evidence

which is settled law in our jurisdiction. In the premises, the cases of

ABDUL ATHUMANI VS REPUBLIC (supra), REMIGIOUS MUGANGA

VS BARRICK BULYANHULU GOLD MINE (supra) and MBEYA

RUKWA AUTOPARTS VS JESTINA GEORGE MWAKYOMA (supra)

cited to us by the appellant's counsel all dealt with omission and remedy

on a denial of a right to be heard which is not the case here and as

such, those decisions have been with respect, cited out of context. In

the premises, the 3rd ground is not merited at all.

Finally, we come to the last ground in which the learned High

Court Judge is faulted for having held that the termination was

procedurally and substantially unfair. While Mr. Kamala argued that the

law was complied with to the letter, Mr. Asubuhi argued to the contrary.

In the event, the learned High Court Judge found that the termination

was based on invalid reasons which rendered the termination

substantively unfair, the determination of procedural compliance was

inconsequential and could not add any value in the wake of lacking valid

reasons for the termination. Without prejudice, that apart, Rule 13 of GN

42/2007 was to some extent followed except for the respondent being

denied to give mitigation before the appellant's final verdict which

offended Rule 13(7) of GN 42 of 2007.

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 In view of what we have endeavoured to discuss, apart from

agreeing with Mr. Asubuhi, the respondent's counsel, we are satisfied

that the termination of respondent from employment was substantively

unfair and, in the circumstances, both the CMA and the High Court were

justified to award 36 month's salary as compensation. Thus, in the

absence of sound reasons to vary the decision of the High Court, we find

the appeal not merited in its entirety and it is hereby dismissed.

DATED at ARUSHA this 21st day of February, 2022.

S. E. A. MUGASHA
JUSTICE OF APPEAL

B. M. A. SEHEL
JUSTICE OF APPEAL

L. G. KAIRO
JUSTICE OF APPEAL

This Judgment delivered this 21st day of February, 2022 in the

presence of Mr. Asubuhi John Yoyo holding brief for Mr. Paschal Kamala,

learn counsel for the Appellant and Mr. Asubuhi John Yoyo, learned

counsel for Respondent, is hereby certified as a true copy of the original.

J. E. FOVO
DEPUTY REGISTRAR
COURT OF APPEAL