IN THE COURT OF APPEAL OF TANZANIA

AT DOPOMA

(CORAM: MUGASHA, J.A., LEVIRA, J.A. And FIKIRINI. J.A1

CIVIL APPEAL NO. 237 OF 2021

GABRIEL BONIFACE NKAKATISI............................................ APPELLANT

VERSUS

THE BOARD OF TRUSTEES OF

THE NATIONAL SOCIAL SECURITY FUND (NSSF)............... RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Tanzania,
Labour Division at Dodoma)

(Mansoor. J.)

dated the 28th day of September, 2018

in

Labour Revision No. 2 of 2018

JUDGMENT OF THE COURT

2nd & 9th May, 2022.

FIKIRINI, J.A.:

The appellant, Gabriel Boniface Nkakatisi was previously

employed by Said Salim Bakhresa & Co. Limited until he resigned on

31st October, 2013. The appellant was then employed and stationed at

Dodoma, by the National Social Security Fund (the NSSF) on 1st

November, 2012, as a data entry assistant, initially on a temporary

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basis and eventually in 2014, was changed to a permanent basis.

During his employment on a temporary basis, the appellant personally

and voluntarily paid contributions to NSSF, which qualified him to

become a member of the NSSF retirement benefits fund.

Following the resignation from his employment with his previous

employer, at the time when already employed by the respondent, and

was studying for his Master's Degree and doing his research in Singida,

the appellant applied for his NSSF benefits in Morogoro, for the

contributions he made while with his former employer, which he was

paid Tzs. 4, 024, 464.21. In the meantime, he also applied for the

same NSSF benefits while in Singida. The respondent detected fraud in

the benefits claims made.

The respondent conducted investigations. Upon completion of

the investigations, the appellant was served with a letter to show

cause why disciplinary measures should not be taken against him. He

appeared before the Disciplinary Hearing Committee on 24th

November, 2016, at the NSSF Head Office, Dar es Salaam. The

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appellant was found guilty and ultimately his employment was

terminated on 15th December, 2016 for being involved in fraudulent

transactions in Morogoro and Singida. The appellant admitted to

having committed the two fraudulent transactions.

Consequent to the termination, the appellant approached the

Commission for Mediation and Arbitration (the CMA) claiming unfair

termination. The process started with mediation and after that has

failed, the dispute was placed before the Arbitrator. Parties were

heard, and in the end, the Arbitrator ruled that the termination of the

appellant was substantively fair but unprocedural since the appellant

was not availed with the investigation report, thus concluding that the

appellant was not afforded a fair hearing. The CMA ordered the

respondent to pay the appellant 12 months' salaries under section 40

(1) (c) of the Employment and Labour Relations Act, No. 6 of 2004

(the ELRA).

Upset by the decision, the respondent successfully preferred a

revision before the High Court, styled as Labour Revision No. 2 of

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2018. The High Court allowed the revision after concluding that the

principles of natural justice were observed by the employer and the

Disciplinary Committee. The termination was thus substantially and

procedurally fair. The CMA decision and the award dated 7th

December, 2017 were revised, quashed, and set aside.

The appellant was aggrieved by the High Court decision and

appealed to this Court on four grounds of appeal:

1. That; the learned High Court Judge erred in iaw in overturning

the CMA award when indeed the appellant had not been given
a fair hearing.

2. That; the learned High Court Judge erred in iaw in holding

that the employer had no duty to supply the appellant with
the investigation report which formed basis o f commencing
the disciplinary charges against him.

3. That, the learned High Court Judge erred in law in holding

that the principles o f natural justice were complied with by
the respondent and the Disciplinary Committee.

4. That; the learned High Court Judge erred in law in issuing a

decree on appeal when no appeal was pending before the
Labour Court.
 On 5th May, 2022 when this appeal was called on for hearing, Mr.

Paul B. S. M. Nyangarika, learned counsel, appeared representing the

appellant. On the respondent's part Ms. Jenipher Kaaya, learned Senior

State Attorney assisted by Ms. Jacquline Kinyasi, Mr. Frank Mgeta, and

Mr. Boaz Msoffe all learned State Attorneys, appeared representing the

respondent.

Before commencing the hearing, we invited the learned counsel

for the parties to address us on the propriety of the proceedings

before the CMA as the record of appeal on various pages indicated all

witnesses testified without being sworn or affirmed, which is contrary

to the requirement under rule 19 (2) (a) read together with rule 25 (1)

of the Labour Institutions (Mediation and Arbitration) Rules, GN. No.

67 of 2007 (GN. No. 67 of 2007).

Mr. Nyangarika affirmatively acknowledged our observation that

all the witnesses who testified before the CMA did so without being

sworn. On her part, Ms. Kaaya also upon perusal of the record of

appeal admitted to the Court's observation of the impropriety of the

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proceedings. They thus urged us to invoke our powers under section

4 (2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 and nullify

the proceedings, quash the decisions of the CMA and resultant revision

before the High Court, set aside the CMA award, and order the record

to be remitted back to the CMA for rehearing.

It is trite law that witnesses take oath before they give evidence.

Such requirement is also provided by section 4(a) of the Oathsand

Statutory Declarations Act [Cap. 34 R.E. 2019] (the Act) as a

mandatory requirement. The provision provides thus:

"4 - Subject to any provision to the contrary contained in

any written law an oath shall be made by-

(a) any person who may lawfully be examined

upon oath or give or be required to give
evidence upon oath by or before a court”.

The CMA is a court within section 4(a) of the Act as the term

"court" under section 2 of the Act is defined to include every person or

body of persons having authority to receive evidence upon oath or

affirmation.

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 Besides the requirement under section 4 (a) of the Act,

Arbitrators at the CMA in the exercise of their duties have been vested

with powers to administer oaths or accept affirmations under rule

19(2)(a) of GN No. 67 of 2007. The provision states:

"19 (2) The powers o f the Arbitrator include: -

(a) Administer oath or accept affirmation

from any person called to give evidence

And this goes hand in hand with the provision of rule 25(1) of

GN. No. 67 of 2007, that witnesses before the CMA are required to

give evidence under oath. The provision provides:

"The parties shall attempt to prove their respective cases

through evidence and witnesses shall testify under
oath through the following process "[Emphasis supplied]

It thus goes without saying that it is a mandatory requirement that any

person who appears in court as a witness has to be sworn or affirmed

before giving testimony.

This Court on several occasions when faced with an akin

scenario as it did in the Catholic University of Health and Allied

Sciences (CUHAS) v. Ephiphania Mkunde Athanas, Civil Appeal

No. 257 of 2020 (unreported), underscored firmly that the failure of

the Arbitrator to administer oath on the witness is fatal to the

proceedings rendering the same null and void.

In the record of appeal before us, it is evident that four

witnesses gave evidence without taking an oath or being affirmed.

This is found on pages 25, 34, 41, and 48 of the record of appeal,

when PW1, DW1, DW2, and DW3 testified. What can be found on

record are the particulars of the witnesses including their religions but

without any indication that the witnesses were sworn or affirmed

before testifying. In our view, mentioning their religion is not a proof

that they were sworn or affirmed. The record must speak for itself loud

and clear by indicating that witnesses were sworn or affirmed before

giving their testimonies.

In the Catholic University of Health and Allied Sciences

(supra), the Court had this to say when stressing on the requirement

of witness to testify under oath or affirmation: -

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 "Rule 25 (1) o f GN. No. 67 o f 2007 compels a witness to
testify under oath. 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........ On the basis o f the above stated
reasons, we find that the omission vitiates the
proceedings o f the CMA. In the event; we hereby quash

the same and those o f the High Court. "[Emphasis added]

See also: Iringa International School v. Elizabeth Post, Civil

Appeal No. 155 of 2019 and Unilever Tea Tanzania Limited v.

Davis Paul Chaula, Civil Appeal No. 290 of 2019, and Attu J. Myna

v Cfao Motors Tanzania Limited, Civil Appeal No. 269 of 2021 (all

unreported).

The consequences of not administering oaths or affirmations

accepted before giving evidence vitiates the proceedings and

prejudices the parties' case.

We hereby invoke the powers bestowed on us in terms of section

4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019 and nullify

the proceedings, quash the CMA and High Court decisions, set aside

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the CMA's award, and the High Court order which revised the award

and no order as to costs.

DATED at DODOMA this 9th day of May, 2022.

S. E. A. MUGASHA
JUSTICE OF APPEAL

M. C. LEVIRA
JUSTICE OF APPEAL

P. S. FIKIRINI
JUSTICE OF APPEAL

This Judgment delivered this 9th day of May, 2022 in the presence

of Mr. Paul B. S. M. Nyangarika, learned counsel for the Appellant and

Mr. Calimius Ruhinda, learned Senior State Attorney for the

Respondent, is here^-cgftified as a true copy of the original.

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