IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA

(CORAM: MWARIJA. 3.A.. NDIKA. J.A.. And KWARIKO, J.A.l

CIVIL APPEAL NO. 357 OF 2019

BARCLAYS BANK (T) L T D ............................................................... APPELLANT

VERSUS

JACOB M URO ............................................................................ RESPONDENT

(Appeal from the Ruling and Order of the High Court of Tanzania, Labour
Division at Mbeya)
(Nqwembe, J.i

dated the 5th day of November, 2018

in
Revision No. 51 of 2017

JUDGMENT OF THE COURT

16th & 26mNovember, 2020

NDIKA. 3.A.:

The appellant, Barclays Bank (T) Ltd., employed the respondent, Jacob

Muro, from 19th May, 2010 under successive fixed term contracts in the

capacity of Sales Manager - Local Business. Subsequently, on 31st May,

2013, the appellant engaged the respondent as Sales Relationship Manager

on a permanent term contract at a monthly salary of TZS. 1,916,666.67

subject to a six months' period of probation, the start date of the service

being 1st June, 2013.

i
 Following a turn of events, the appellant initiated disciplinary

proceedings on 7th February, 2014 against the respondent allegedly for

violations of the Code of Conduct committed during the probation period.

These proceedings culminated in the appellant terminating the respondent's

employment vide a letter of 18th March, 2014. Dissatisfied, the respondent

instituted a claim of unfair termination against the appellant in the

Commission for Mediation and Arbitration ("CMA").

Initially, the matter had an uneasy progression. After mediation was

certified to have failed, the dispute was arbitrated ex parte due to the

appellant's non-appearance. On 28th November, 2014, the arbitrator

(Boniface L. Nyambo) entered an award in favour of the respondent for sum

of TZS. 307,666,632.00 as compensation having upheld the claim.

Dissatisfied, the appellant lodged Revision No. 6 of 2015 in the High Court

of Tanzania, Labour Division at Mbeya to challenge the award on several

grounds including a grievance that the CMA had no jurisdiction to entertain

the matter because it was time-barred. In its decision dated 27th May, 2015,

the High Court (Nyerere, J.) dismissed the contention that the referral to the

CMA was time-barred. Nonetheless, the learned Judge set aside the award

on the ground that it was procured with a material irregularity contrary to

section 91 (2) of the Employment and Labour Relations Act, Cap. 366 R.E.

2002 (now R.E. 2019) ("the ELRA"). In consequence, she remitted the

complaint back to the CMA for a fresh arbitration inter partes before a

different arbitrator.

In line with the High Court's order, the complaint was placed before a

new arbitrator, Naomi Kimambo. Before the matter proceeded for

arbitration, the appellant, by way of preliminary objection, rehashed the

grievance that the CMA had no jurisdiction to entertain the complaint due to

its being time-barred. In her ruling dated 27th May, 2016 (at pages 221 to

226 of the record of appeal), the arbitrator dismissed the objection

essentially on the ground that Nyerere, J.'s decision on the point was binding

on her. Hence, she proceeded to arbitrate the matter and eventually

rendered her award on 8th September, 2017 by which she sustained the

claim. She thus awarded the respondent a total of TZS. 128,481,487.48 as

compensation representing, inter alia, 20 months remuneration, severance

pay as well as repatriation expenses and allowances.

Aggrieved, the appellant challenged the award by way of revision in

the High Court of Tanzania at Mbeya in Revision No. 51 of 2017. In its ruling,

the High Court (Ngwembe, J.) partly granted and partly denied the
3
application. Whereas the court upheld the arbitrator's finding that the

respondent's termination was substantively and procedurally unfair, it

trimmed down the quantum of awarded compensation by disallowing

severance pay as well as repatriation expenses and allowances. The learned

Judge also adjusted the salaries compensation upwards by setting it at 24

months remuneration.

Still aggrieved, the appellant now challenges the High Court's decision

on six grounds thus:

1. That the learned Judge erred in law in ruling that the respondent
was not under probation during termination o f his employment.
2. That the learned Judge erred in law in ruling that the arbitrator had
jurisdiction to entertain and adjudicate the dispute as it was not

time-barred.
3. That the learned Judge erred in law in finding that the respondent's
termination was substantively and procedurally unfair.
4. That the learned Judge erred in law in awarding 24 months'salaries
without any justification and contrary to the law.
5. That the learned Judge erred in taw in holding that the decision by
the appellant to terminate the respondent's employment on the
ground o f failure to demonstrate values and behavior o f the
appellant bank and failure to demonstrate leadership to his
 subordinates and going on leave without the appellant's
Management Approval was substantially unfair.
6. That the learned Judge erred in law and in fact by failure to re­
assess and re-analyse properly the evidence on the record hence
he reached a wrong conclusion.
Before us, Mr. Tazan K. Mwaiteleke, learned counsel, prosecuted the

appeal on behalf of the appellant whereas Ms. Irene J. Mwakyusa, also

learned counsel, stood for the respondent.

In their respective oral arguments, the learned counsel adopted their

written submissions in support of or in opposition to the appeal.

Understandably, they particularly focused on the first and second grounds of

appeal, which raise threshold issues. We propose to address, at first, the

second ground of appeal as it raises a jurisdictional question - whether the

referral to the CMA was made within the prescribed limitation period.

On the above issue, Mr. Mwaiteleke urged us to hold that the High

Court erred in finding that the respondent's claim to the CMA was not time-

barred and that the CMA had jurisdiction to arbitrate the dispute. Referring

to Rule 10 (1) of the Labour Institutions (Mediation and Arbitration) Rules,

2007, Government Notice No. 64 of 2007 ("the Rules"), he submitted that

the said claim ought to have been instituted within thirty days from the date

5
of termination. He contended that the said limitation period, reckoned from

18th March, 2014 indicated as the date of termination by the respondent on

the referral form (CMA Form No. 1 - at page 15 of the record of appeal),

had expired by the time the claim was lodged on 22nd April, 2014.

Elaborating, he submitted that by calculating the said limitation period from

18th March, 2014 in terms of Rule 4 (1) and (2) of the Rules exclusive of the

first day but inclusive of the last day, the complaint should have been lodged

by 17th April, 2014. For ease of reference, we reproduce the aforesaid

provisions thus:

"4 (1) Subject to sub-ruie (2), for the purpose o f

calculating any period o f time in terms o f these Rules,
the first day shall be excluded and the last day shall
be included.

(2) The last day o f any period must be excluded if it

falls on a Saturday, Sunday or public holiday."

Replying, Ms. Mwakyusa strongly disagreed with her learned friend.

While conceding that, indeed, the referral form indicated that the date of

termination was 18th March, 2014 and that the claim was filed on 22nd April,

2014, she contended that the thirty days limitation period had to be reckoned

from 20th March, 2014, it being the date on which the respondent received
the letter of termination as signified by his counter signature on it (Exhibit

D.10- page 251 of the record of appeal). In calculating the limitation period

in terms of Rule 4 (1) and (2) of the Rules exclusive of the first day, she

contended that the last day was 19th April, 2014, which, being Saturday, had

to be excluded along with next two consecutive days - 20th April, 2014

(Sunday) and 21st April, 2014 (Easter Monday, a public holiday). On that

basis, she submitted that the complaint, lodged on the following working

day, Tuesday 22nd April, 2014, was duly instituted.

Ahead of our determination of the question under consideration, it is

instructive to recall what we hinted earlier that the complaint under

consideration was raised to the CMA as a preliminary objection and that the

arbitrator dismissed it on the ground that it had been decided finally and

conclusively by Nyerere, J. The same complaint, then, featured again in

Revision No. 51 of 2017 before Ngwembe, J. as one of the grounds of

revision. The appellant was yet again unsuccessful as Ngwembe, J. held that

the referral was made within time. The learned Judge decided the point by

adopting Nyerere, J.'s reasoning and finding in the earlier revision (Revision

No. 6 of 2015). The relevant part of the quoted holding, at page 777 of the

record of appeal, reads as follows:

 "The records reveal that the respondent was
terminated on 18th Marchr 2014 and
employment dispute was referred to the CMA
on 22nd April, 2014. In normal calculation the
dispute was referred to the CMA after 33 days, which
is contrary to Rule 10 (1) o f G.N. No. 64/2007. But in
the eyes o f law, the dispute was timely filed at the
CMA. Why? Because under section 60 (2) o f the
Interpretation of Laws Act, weekends and
public holidays are excluded in computing
time, that is not only the requirement o f law
but also the practice o f this court in a number

of cases. Thus, out o f 33 days if I exclude

weekends it remains 28 days hence the
referral was timely filed at the CMA. "[Emphasis

added]

We have emboldened the text in the above holding so as to make two

observations, albeit very briefly. First, we are aware that in reckoning days

prescribed by a statutory provision a court is enjoined to apply the provisions

of section 60 of the Interpretation of Laws Act, Cap. 1 R.E. 2002 (now R.E.

2019) ("the ILA"). Yet, it seems to us that the language and context of Rule

4 of the Rules is that the said rule should be applied for computation of any

period prescribed by and in terms of the said Rules. In our view, the
application of that rule will secure the same result as section 60 of the ILA.

Secondly, while both section 60 (2) of the ILA and Rule 4 (2) of the Rules

provide for exclusion of non-working days (Saturday, Sunday and public

holiday) if the last day of any prescribed period of limitation falls on any such

day, none of the said provisions has the effect of excluding all weekends

and public holidays falling within a particular period as suggested

in the above holding. Thus, it means the exclusion by Nyerere, J. of five

days falling on weekends throughout the period of thirty-three days was

manifestly erroneous.

Adverting to the question under consideration, for a start, it is common

ground that Rule 10 (1) of the Rules provides a thirty-days limitation period

for lodging an unfair termination claim. It stipulates as follows:

11Disputes about the fairness o f an employee's

termination o f employment must be referred to the
Commission within thirty days from the date o f
termination or the date that the employer
made a final decision to terminate or uphold
the decision to terminate." [Emphasis added]

From the contending submissions of the learned counsel, the simple

but crucial issue arising for our determination is whether the referral to the
CMA was made within thirty days of the date of the impugned termination.

We note here that in addressing this issue the learned counsel, in essence,

clashed over the point of reckoning of the aforesaid thirty days limitation:

while Mr. Mwaiteleke contended that the said period must be reckoned from

18th March, 2014 stated on the referral form as the date of termination, Ms.

Mwakyusa countered that the point of reckoning was 20th March, 2014 when

the letter of termination was served on the respondent as shown by Exhibit

D.10.

It is our firm view that in determining whether a referral to the CMA is

made within time or not the date of termination indicated on the form would

be the date of reckoning. Thus, we are not enjoined in this matter to

interpret the meaning of the phrase "date of termination" in Rule 10 (1) of

the Rules; for, the date of termination is as was stated by the respondent on

the referral form, which is prescribed under section 86 (1) of the ELRA for

referrals to the CMA. It should be emphasized that it is obligatory on the part

of the complainant to state accurately the date of termination on the referral

form so that the CMA may determine whether the referral was made within

the prescribed period so as it can determine whether it has jurisdiction to

deal with the dispute or not.

10
 We feel compelled, at this point, to restate the time-honoured principle

of law that parties are bound by their own pleadings and that any evidence

produced by any of the parties which does not support the pleaded facts or

is at variance with the pleaded facts must be ignored - see James Funke

Ngwagilo v. Attorney General [2004] TLR 161. See also Lawrence

Surumbu Tara v. The Hon. Attorney General and 2 Others, Civil

Appeal No. 56 of 2012; and Charles Richard Kombe t/a Building v.

Evarani Mtungi and 3 Others, Civil Appeal No. 38 of 2012 (both

unreported).

By way of emphasis, we wish to refer, with approval, to a passage in

an article by Sir Jack I.H. Jacob bearing the title, "The Present Importance

of Pleadings," first published in Current Legal Problems (1960) at p. 174

thus:

"As the parties are adversaries, it is left to each one

o f them to formulate his case in his own way, subject
to the basic rules o f pleadings .... For the sake o f
certainty and finality, each party is bound by his own
pleadings and cannot be allowed to raise a different
or fresh case without due amendment properly
made. Each party thus knows the case he has to

ii
 meet and cannot be taken by surprise at the trial.
The court itself is as bound by the pleadings o f the
parties as they are themselves. It is no part o f the
duty o f the court to enter upon any inquiry into the
case before it other than to adjudicate upon the
specific matters in dispute which the parties
themselves have raised by the pleadings. Indeed, the
court would be acting contrary to its own character
and nature if it were to pronounce any claim or
defence not made by the parties. To do so would be
to enter upon the realm o f speculation."

As indicated earlier, in the present case while the pleaded date of

termination was 18th March, 2014, the respondent contradicted this fact by

asserting that the 20th March, 2014 as the date of termination as shown by

ExhibitD.10 that he introduced in the course of the hearing beforethe

arbitrator. We are decidedly of the view that the respondent cannot be

allowed to maintain the 20th March, 2014 as the date of termination

contradicting what he had pleaded. By indicating the 18th March, 2014 on

the referral form, it is apparent that the respondent was aware of his

termination at that date. Hence, we hold that the sixty days limitation period

ought to have been reckoned from 18th March, 2014 as pleaded.

12
 In view of the above finding, we would agree with Mr. Mwaiteleke that

by calculating the applicable limitation period from 18th March, 2014 in terms

of Rule 4 (1) and (2) of the Rules exclusive of the first day but inclusive of

the last day, the complaint should have been lodged by 17th April, 2014, The

High Court (Ngwembe, J.) certainly fell into error in his computation of the

limitation period by adopting Nyerere, J.'s computation by which all days

falling within the weekends were excluded as we explained earlier. We are,

therefore, constrained to hold that the respondent's complaint to the CMA

made on 22nd April, 2014 was time-barred and that the CMA had no

jurisdiction to take cognizance of the matter. The second ground of appeal

is, therefore, meritorious.

In view of the foregoing finding on the jurisdictional question in the

second ground of appeal which is dispositive of the appeal, we find no need

to deal with the rest of the grounds of appeal.

In the final analysis, we allow the appeal. Since the CMA acted without

jurisdiction as the referral was time-barred, we nullify its proceedings as well

as its award. The same fate befalls upon the proceedings in the High Court,

Labour Division as well as the decision thereon as they stemmed from a

13
nullity. This matter being a labour dispute not attracting an award of costs,

we make no order as to costs.

DATED at MBEYA this 26thday of November, 2020.

A. G. MWARIJA
JUSTICE OF APPEAL

G. A. M. NDIKA
JUSTICE OF APPEAL

M. A. KWARIKO
JUSTICE OF APPEAL

The Judgment delivered this 26th day of November, 2020 in the presence of

Mr. Gerald Msegeya holding brief for Mr. Tazan Mwaiteleke the counsel of

the Appellant and Ms. Irene Mwakyusa, counsel for the Respondent is hereby

certified as a true copy of the original.