IN THE COURT OF APPEAL OF
AT
DAR ES SALAAM
(CORAM: MUNUO, J.A., NSEKELA, J.A. And KIMARO,
J.A.)
CIVIL
APPEAL NO. 14 OF 2002
JOSHUA
BAKARI…………………………………………..APPELLANT
VERSUS
THE
PROJECT MANAGER
THE
MANAGER DIRECTOR
(Appeal
from the Judgment of the High Court of
(Bubeshi,
J.)
dated
the 2nd day of March, 1998
in
HC. Civil Case No. 127 of
1994
---------
JUDGMENT OF THE COURT
16 October &
8 November, 2007
MUNUO , J.A.:
The appellant, Joshua Bakari, instituted
Civil Case No. 127 of 1994 in the High Court of Tanzania at Dar es Salaam
(i)
Sh. 157,000/= transport
charges for personal effects;
(ii)
Sh. 55,000/= one month’s
notice in lieu of leave;
(iii)
Sh. 281,283.40 for unpaid
overtime allowance for March, April, May and June, 1992.
(iv) Sh.
333,000/= expected income for six months;
(v)
Sh. 20,000,000/= damages
for defamation.
The
High Court, Bubeshi, J. held that the appellant was entitled to terminal
benefits to be calculated by the employer and the Labour Officer,
Morogoro. She rejected the other claims
for lack of proof, and ordered either party to bear their costs. Dissatisfied with the decision of the learned
judge, the appellant preferred this appeal.
The appellant was unrepresented.
Mr. Kalolo Bundala, learned advocate, represented the respondents.
The
facts are straight forward. By a letter
dated the 1st March, 1992, the appellant was employed by the 3rd
Respondent, the Tanzania Electrical Services Ltd/Siemens as Chief Surveyor. Clause three of the employment contract
states, inter-alia:
3.
The
said appointment shall commence with effect from 1/3/1992 and the employee
shall be on probation for the first 6 months in which period either party may
give 24 (twenty four) hours notice.
As
to what would happen, after 6 months service, the employment contract states
that:
4.
After
6 months this agreement may be terminated by either party giving 7 weeks/months
notice in writing or by paying …………..weeks/month salary [sic] in lieu except in
the case of misconduct when employment will cease summarily and without notice.
It
was the case of the appellant that he worked as Chief Surveyor until the
respondent stopped him from working alleging that he had stolen 10 bags of
cement, the property of his employer. On
that allegation, the appellant said he was unlawfully terminated from his job. The incident, he stated, was not reported to
the police. He denied stealing from his
employer. The appellant sought the
intervention of his trade union branch and later on, the Labour Office, in
vain. He then sued for the above
reliefs.
The letter from the Labour Office,
reflects the terminal benefits the Labour Office advised the employer to pay
the appellant. The letter, states
verbatim:
MINISTRY OF LABOUR AND
YOUTH DEVELOPMENT
Ref.
No. MOR/143/152
M/s
SIEMENS,
P.O.
BOX 1908
MOROGORO.
Dear Sir,
Re: THE SECURITY OF EMPLOYMENT ACT NO. 62, 64
MR. JOSHUA BAKARI
1.
Please
refer to your letter dated 24/6/1992
2.
As
you have decided to terminate his services you are obliged to pay ALL terminal
benefits.
3.
In
this letter you are hereby required to pay him the sum of Sh. 19,384/= on or
before 11/7/1992 otherwise you are advised to call at this office on Friday
10/7/1992 at 9.00 a.m. for further clarification.
Apparently
the Labour Office could not settle the matter out of court so the appellant filed
the action seeking the above reliefs.
The Labour Office did not refer the matter to court.
As indicated earlier on, Bubeshi, J.
partially allowed the claim to the extent that she ordered the employer to pay
the due terminal benefits to be calculated by the Labour Officer at Morogoro.
Before
us the appellant observed that he was employed on the 1.3.1992 and dismissed on
the 23.6.1992 after working for 3½ months only and before the probation period
of 6 months ended. He refuted the theft
allegation and insisted that the respondents defamed him by saying he stole 10
bags of cement so they are liable to pay damages. He said that as a surveyor, he was not part
of the management.
In
the memorandum of appeal, the appellant complained that the learned judge
misdirected herself on “points of law on the administration of termination of
employment contracts”.
In
ground 2, the appellant faulted the learned judge for not awarding him damages
for defamation for being called a thief of ten bags of cement by his employer
which he categorically denied.
Mr.
Kalolo Bundala, learned advocate, urged us to dismiss the appeal for want of
merit. Contending that the learned judge
correctly determined the case, counsel for the appellant observed that the
appellant was summarily dismissed under the provisions of Section 28 of the
Security of Employment Act, 1964, Cap 574 which oust the jurisdiction of courts
of law in summary dismissal causes. In
that regard, counsel for the respondent contended, the High Court lacked
jurisdiction to determine the matter.
The appellant insisted that he has free access to the courts of law so
the High Court had jurisdiction to determine the suit.
We
wish to refer to Section 28 (1) of the Security of Employment Act, 1964, Cap
574 which reads:
28.
(1)
No suit or other civil proceedings (other than proceedings to enforce a
decision of the Minister or the Board on a reference under this Part) shall be
entertained in any civil court with regard to the summary dismissal or proposed
summary dismissal of an employee.
In
the case of Kitundu Sisal Estate versus
Shingo and Others (1970) E.A. 557, the then Eastern Africa
Court of Appeal, considered the provisions of Section 28 (1) of the Security of
Employment Act, 1964, Cap 574, which provisions ousts the jurisdiction of
courts of law in summary dismissal case.
The Court held that –
The claim was
founded on dismissal without notice which is summary dismissal and the
magistrate therefore had no jurisdiction to try the case.
The
decision in the Kitundu Sisal Estate
case was affirmed by the Tanzania Court of Appeal in the case of KLM Royal Dutch Airlines versus Jose Xavier
Perreira (1994) TLR. 230 wherein
the Court held that –
Section 28 of the
Security of Employment Act, 1964 ousts the jurisdiction of the Court in cases
of summary dismissals and salary deductions as a disciplinary penalty.
In
view of the above, we are satisfied that the provisions of Section 28 (1) of
the Security of Employment Act, 1964, Cap 574 ousted the jurisdiction of the
Courts in summary dismissal cases. For
that reason, the Morogoro Labour Officer did not refer the complaint of the appellant’s
summary dismissal to court. Nor can we
consider the claim of damages for defamation separately for it is part and
parcel of the employment cause instituted by the appellant. The same view was held by the Court in the KLM Royal Dutch Airlines cited supra by
stating that –
The Court cannot
take upon itself, without application from the parties, to amend the basis of
the cause of action merely to take the claim away from the ouster clause for
Section 28 of the Security of Employment Act.
In
a nutshell, the learned judge ought to have dismissed the case for lack of
jurisdiction pursuant to the provisions of Section 28 (1) of the Security of
Employment Act, 1964, Cap 574. That
would be sufficient to dispose of the appeal but we wish to go further and hold
that even if the court had jurisdiction, we would still dismiss the appeal for
another reason. That is, the appellant
was dismissed within the period of six months probation. During the probation period, either party
could terminate the employment contract within 24 hours so the employer rightly
terminated the contract as reflected on Page 46 of the record of appeal.
Under the circumstances, the appeal is
devoid of merit. We accordingly dismiss
the appeal with costs.
DATED
at DAR ES SALAAM this 6th
day of November, 2007.
E. N. MUNUO
JUSTICE
OF APPEAL
H. R. NSEKELA
JUSTICE
OF APPEAL
N. P. KIMARO
JUSTICE
OF APPEAL
I
certify that this is a true copy of the original.
S. M. RUMANYIKA
DEPUTY
REGISTRAR
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