IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA
fCORAM: NDIKA, J.A., RUMANYIKA. J.A. And MURUKE. J.A.^

CONSOLIDATED CIVIL APPEAL NO. 386 OF 2020 & 50 OF 2021

SECURITY GROUP (T) LIM ITED ......................... APPELLANT/RESPONDENT

VERSUS
STEVEN GERSON KIZINGA (As an administrator
of the estate of the late MASHAKA A. S ETEB E)......... RESPONDENT/APPELLANT
(Appeal from the Judgment and Decree of the High Court of Tanzania

Labour Division, at Mbeya)

(Monaella, J.^

dated the 7th day of May, 2020

in

Labour Revision No. 54 of 2017

JUDGMENT OF THE COURT

6th & 23rd February, 2024

MURUKE. J.A.:

On 17th April, 2015 the respondent's employment was terminated

following being found guilty of gross misconduct by the disciplinary

committee of the appellant on three misconducts namely; conflict of

interest, misuse of the company resources and breach of trust. Dissatisfied,

the respondent lodged a labour complaint before the Commission for

Mediation and Arbitration (the CMA) claiming that the termination was

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substantively and procedurally unfair. After hearing, the CMA held that while

the termination was substantively unfair it was procedurally fair. On terminal

dues, the CMA held that in view of section 44 of the Employment and Labour

Relations Act (the ELRA), the appellant was not required to impose

conditions for the respondent to be paid his final due. For that reason,

among others, the CMA awarded the respondent subsistence allowances at

the rate of TZS 337,200.00 per day for 206 days, making total of TZS

69,483,594.00, and TZS 4,041,400.00 being repatriation costs.

Aggrieved with the award, the appellant filed a labour revision before

the High Court which was partly successful, in which the respondent's

termination was with fair reasons, thus he was not entitled to the

compensations for unfair termination. More so, the High Court set aside the

repatriation costs and ordered the appellant to otherwise repatriate the

respondent. The subsistence allowance was reduced to TZS 36,666.00 per

day which is proportional to the respondent's daily salary. The respondent

was also awarded payment in lieu of notice, annual leave payment and

payments for the unpaid days worked.

Both parties were aggrieved by the High Court's decision. While the

appellant, Security Group (T) Ltd, lodged Civil Appeal No. 386 of 2020, the

respondent, Steven Gerson Kizinga acting as the administrator of the estate

of the late Mashaka A. Setebe, filed Civil Appeal No. 5 of 2021. At the

hearing, we consolidated the appeals in terms of rule 110 of the Tanzania

Court of Appeal Rules, 2009 with the consent of the parties. Thus, the

parties herein are cited as the appellant and respondent only for

convenience.

The appellant attacks the High Court's decision on five grounds,

namely: -

1. The High Court grossly erred in iaw in ordering the appellant

to repatriate the respondent while there is am ple evidence

that the respondent refused to be repatriated.

2. The High Court grossly erred in iaw in awarding the

respondent subsistence allowance while there is am ple

evidence that the respondent refused to be repatriated.

3. The High Court grossly erred in iaw in awarding the

respondent severance pay having found that the term ination

was fa ir on grounds o f misconduct.

4. The High Court grossly erred in iaw in not finding that the

respondent was not entitled to subsistence allowance from

the date he refused transport provided by the appellant

 5. The High Court grossly erred in law and fact in holding that

the respondent was entitled to one month salary in lieu o f

notice to the tune o f TZS. 1,950,399.99 while there was

am ple evidence that his basic salary was TZS 1,100,000.00.

On the other hand, the respondent has raised four grounds namely:

1. That the High Court erred in law and fact for holding that the

appellant proved two m isconducts out o f three hence the

term ination was substantively fair.

2. That the High Court erred in law for holding that the term ination

was fa ir and the respondents testim ony was not convincing on

the second m isconduct o f "misuse o f company resources"

despite the appellant's failure to prove on the existence o f the

m isconduct on the balance o f probabilities.

3. That the High Court erred in law for holding that the term ination

was fa ir thus the third m isconduct o f breach o f trust was proved

by the appellant while (Bank Balance request slip-exhibit SGT

10) & (Bank report exhibit SG T 11) were objected by the

appellant.

4. That the High Court erred in law for m isinterpretation o f

regulation 16 (1) o f the Employment and Labour Relations

 (Genera!) Regulations, GN47 o f 2017 for reduction o f the daily

basic salary o f the appellant to 36,666/=.

Before commencement of the hearing, Mr. Emmanuel Safari, who was

representing the appellant prayed to raise additional ground of appeal. The

respondent's counsel Mr. Daniel Muya did not object to the prayer, thus the

registered the additional ground by the appellant, namely; the arbitrator

failed to append signature at the end of each witness's testimony in the

proceedings of CMA.

This Court having gone through all grounds raised by the appellant

and the respondent they all boil down to three issues:

1. Whether, the Arbitrator's failure to append signature at the end of the

testimony of each witness vitiates proceedings of the CMA.

2. Whether, it was proper to order subsistence allowance while the

respondent refused to be repatriated.

3. Whether, regulation 16(1) of the employment and Labour Relations

(General) Regulations GN. No. 47 of 2007 was properly interpreted

by the High Court Judge.

On the issue number one as to whether failure by the arbitrator to sign

after each testimony of the witness, the appellant's counsel submitted that
the omission vitiated the proceedings because it is not authenticated

whether what witness said is correct reflection of the proceedings. Learned

Counsel asked the Court to quash both the CMA and High Court proceedings

and set aside the award, then order retrial.

The respondent's counsel, on his part while admitting the omission,

was quick to point out that the omission did not occasion any injustice, and

argued urged the Court to dismiss the ground.

Before resolving issue number one, it is worth noting that, the Labour

Court, and the Commission for Mediation and Arbitration, including the

Office of Labour Commissioner are specialized institutions in labour matters.

They were established with the aim of putting in place a regulatory structure

that is more flexible and conducive to economic efficiency and employment

promotion. Thus, the labour laws and its rules are simple and flexible aimed

at promoting economic efficiency through productivity and social justice.

Arbitrators in the arbitral proceedings enjoy a lee way of promulgating

a procedure that ensures that matters they adjudicate are disposed of

quickly and fairly, and with a minimum of legal formalities. This position is

predicated on what is provided for under section 88(4) of the ELRA which

provides as hereunder:
 "The arbitrator]

(a) May conduct the arbitration in a m anner that the

arbitrator considers appropriate in order to
determ ine the dispute fairly and quickly;
(b) Shall deal with the substantiai m erits o f the dispute
with the minimum o f legal form alities

Therefore, ELRA permits the arbitrators to conduct arbitration in a

manner that the arbitrator considers appropriate but in doing so arbitrator

must be guided at least by three considerations to wit; first, they must

resolve the dispute between the parties. Second, they must do so

expeditiously. Three, in resolving labour dispute they must act fairly to all

the parties. The arbitrators in conducting the proceedings must be guided

with minimum of legal formalities which suggests that arbitration

proceedings are not adjudicatory proceedings. Thus, the arbitrator has

discretion to elect among others an inquisitorial or adversarial approach in

conducting arbitration proceedings. Such a choice should be dictated by the

nature of the dispute, the parties to the dispute, as well as other factors that

might be relevant in order to achieve the goal of dealing with the substantial

merits of the dispute fairly, quickly and with minimum legal formalities.
 Equally so, Rule 19 of Labour Institutions (Mediation and Arbitration)

Guidelines, 2007 [GN. No. 67 of 2007] is what governs the conduct of the

proceedings in the CMA. The same provides;

"An arbitrator has the power to determ ine how the

arbitration should be conducted "

Evidently, this procedure is substantially different from what obtains in

criminal or civil procedure statutes. In this case, the arbitrator's action would

be considered anomalous if his decision in that respect was inconsistent with

the procedure mentioned here.

In our recent decision Mbeya Urban Water & Sewerage Authority

vs Lilian Sifael (Civil Appeal No. 300 of 2022) [2024] TZCA 64 (20 February

2024) the Court recognized the applicability of Rule 19 of GN. No. 67 of

2007 in relation to regulation of conduct of proceedings at CMA, it was noted

that;

"We are cognizant that in term s o f rule 19 (1) o f the

Labour Institutions (Mediation and Arbitration
Guidelines) Rules, 2007, Government Notice No. 20
67 o f 2007 ("the Mediation and Arbitration Rules"),
an arbitrator, in the first place, has the pow er to
determ ine how the arbitration should be conducted.
Nonetheless, the position we have stated above is
 reflected by rule 24 o f the Mediation and Arbitration
Rules regulating the sequence of opening
statem ents and presentation o f cases."
In the same vein the Court in North Mara Gold Mine Limited v.

Isaac Sultan, Civil Appeal No. 458 of 2020[2021] TZCA755, (16 December,

2021, TANZLII) we stated as follows: -

"Our conclusion on this ground is that this case is

distinguishable from the case of Irin g a
In te rn a tio n a l S ch o o l; U n ile v e r Tea T anzania
L im ite d a n d Jo se p h E lish a v. T anzania P o s ta l
B a n k (supra) because in this case the A rbitrator
designed his own way o f authenticating the
evidence, which is within his powers to do in term s
o f Rule 19(1) o f the Rules. We are fu lly satisfied that
the absence o f Arbitrator's signature a t the end o f
the testim ony o f each witness in this case, did not
vitiate the proceedings nor prejudice any party
because, if anything, any possible suspicion on the
authenticity o f those proceedings, was cleared by
the parties and advocates signing."

This position was also emphasized by the Court in the case of Finca

Tanzania Limited v. Wildman Masika & 11 Others, Civil Appeal No.

173 of 2016 (unreported) where it was held that:

 "It is apparent from the quoted provisions that the
A rbitrator has the pow er to regulate and determ ine
the practice and procedure o f how arbitration should
be conducted .... M oreover, th e R u le s do n o t
p ro v id e fo r a n y re s o rt to th e C PC w here th e re
is a la cu n a in th e p ro ced u re to be a p p lic a tio n
o f th e C PC s tric tly w here th e re is a la cu n a in
th e M e d ia tio n a n d A rb itra tio n G u id e lin e s
R u le s d u rin g a rb itra tio n p ro ce ss is , in o u r
view , to d e fe a t th e ve ry p u rp o se o f th e s a id
ru le s w h ich aim to m ake th e p ro ce d u re a s
sim p le a s p o ssib le to a tta in su b sta n tiv e
ju s tic e to th e p a rtie s in vie w o f n a tu re o f th e
p ro c e e d in g s [Emphasis is added].

There is no dispute that the Arbitrator did not sign the proceedings

after the testimonies of the parties' witnesses. We are aware that the Rules

guiding CMA proceedings during arbitration are silent on the requirement

of signing at the end of the particular witness's testimony. Indeed, this

being a record of the proceedings of the CMA, it cannot be easily impeached

as it is presumed to be authentic as to what transpired before it. Besides,

in view of the submissions of the counsel for the parties before us, it has

not been contended that the substance of the evidence recorded by the

CMA does not reflect what the witnesses testified.

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 Following the introduction of the principle of overriding objective into

the Appellate Jurisdiction Act Cap 141 (the AJA), this Court is now obliged

to take into account the overriding objective principles before hastening to

strike out matters on procedural grounds. In that respect, section 3A of the

AJA is instructive that the main role (overriding) of this Court is to facilitate

the just, expeditious, proportionate and affordable resolution of all matters

governed by the AJA. As alluded earlier, that, procedures at CMA, armed at

achieving the goal of dealing with the substantial merit of the dispute fairly,

quickly and with minimum legal formalities.

We therefore find that the failure of the arbitrator to append signature

at the end of each witnesses' testimony did not, in the circumstances of

this case, occasion miscarriage of justice to the parties. Consequently, issue

number one has been answered in the negative.

On issue number two as to whether it was proper to order subsistence

allowance while respondent refused to be repatriated.

It was the appellant's counsel submission that the respondent refused

to be repatriated hence, it was not easy for the appellant to repatriate him,

because he refused to hand over some of the respondent's properties. Mr.

Muya, counsel for the respondent argued that, there is no evidence to prove
that the appellant intended to repatriate the respondent. The argument by

the appellant's counsel is not supported by records. More so, payment of

repatriation costs is not subject to any conditions like return of the

company's properties.

As rightly argued by respondent's counsel, the complaint on refusal of

repatriation is neither supported by the records since it has no bearing to

the pleadings (opening statement), the evidence of the five witnesses of the

appellant, nor was it submitted before the High Court. Before the CMA the

appellant did not suggest that the respondent refused to be repatriated,

however it is on record that the appellant withheld the terminal benefits

waiting the respondent to do clearance and handover the office as reflected

at pages 200, 204, 206 and 216 of the record. While in the High Court, the

complaint was on the justification of the amount awarded and not that the

respondent was not entitled to be repatriated as seen at pages 247 and

251). Again, like the CMA, the decision of the High Court did not reflect the

issue of refusing to be repatriated but focussed on the amount as seen from

page 451 to 452 of the record. Thus, issue number two is answered that the

appellant was duty bound to repatriate the respondent.

In regard to the third issue relating to the interpretation of Regulation

16(1) of GN. No.47 of 2007. The appellant complained that the basis of

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computing the respondent's subsistence allowance was TZS 1,950,399.99

and not TZS 1,100,000.00 the respondent's salary. Going by the records at

page 200 the CMA proceedings, DW2 admitted that at the time of

termination, the net salary of the respondent was TZS 1,950,339.99.00 but

his take home was 1,100,000.00.

The respondent counsel replied that, the respondent's monthly

remuneration was TZS. 1,950,339.99.00 which was made up by his salary

TZS. 1,100,000/= and his responsibility allowance, i.e. 850,000/= in terms

of exhibit SGT 16 at page 120 of the records. The respondent was entitled

to his basic salary and all other entitlements he was receiving in course of

his employment, to wit TZS. 1,950,339.99.00.

We have heard both advocates on this ground, the 1st appellate judge

at page 462-463 of the records found that the daily basic salary to be

36,666/= since his monthly basic salary was TZS. 1,100,000/=.

The law under Regulation 16 (1) of GN.No.47 of 2007 provides;

"The subsistence expenses provided under Section

4 3 (l)(c) o f the Act, sh all be quantified to the daily
basic wage or as m ay from tim e to tim e be
determ ined by the relevant wage board"

From the cited law, the daily wage is quantified from the basic wage

which is the salary that the respondent would have received when he was

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working, which is T7S. 1,100,000/=. Therefore, the High Court properly

interpreted Regulation 16 (1) (supra) to arrive to the finding that the daily

subsistence allowance of TZS. 36,666/= per day. We so hold. Therefore, this

ground lacks merit.

In totality, both appeals are dismissed for lack of merit.

DATED at MBEYA this 23rd day of February, 2024.

G. A. M. NDIKA
JUSTICE OF APPEAL

S. M. RUMANYIKA
JUSTICE OF APPEAL

Z. G. MURUKE.
JUSTICE OF APPEAL

Judgment delivered this 23rd day of February, 2024 in the presence of

Mr. Peter Kiranga, learned counsel, holding brief for Mr. Daniel Muya,

learned counsel for the Appellant also holding brief for Mr. Emmanuel Safari,

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