D. P. Mtenga v. University of Dar es salaam (1971)

IN THE COURT OF APPEALAT DAR ES SALAAM CORAM :( DUFFUS, P., LAW AND MUSTAFA JJA)

CIVIL APPEAL NO 53 OF 1971
BETWEEN

D.P. MTENGA ………………………………………………………….APPELLANT

AND

UNIVERSITY OF DAR ES SALAAM……………………………….. RESPONDENT

[Appeal from a judgment and order of the High Court of Tanzania at Dar eS Salaam (Biron, J.) dated 20^th July, 1971, in Civil Case No. 39 of 1971]

8^th February, 1972

The following Judgments were read:-

LAW , J.A.

The appellant was employed as an Administrative Assistant by the respondent University, by a letter dated 4^th June, 1968, which stated that the appointment was probationary and subject, I quote, "to the relevant Regulations of the College Council".

The principal terms and conditions were summarised on the reverse side. Paragraph (iv) is of importance in connection with this appeal

"(iv) you will be on probation for a period of one year in the first instance at the end of which period, subject to your work and conduct being satisfactory and to your passing any requisite examinations, you will be eligible for confirmation in your appointment."

In January, 1969, the appellant was granted an increase of salary, or increment, notwithstanding the provisions of regulation 15(c)(1) of the relevant Regulations, which lays down that an employee will not be entitled to an increment until the date of his confirmation.

On the 3^rd June, 1969, the appellant's probationary period as defined in his letter of appointment expired without the appellant having received notice of any extension of his period of probation, as required by regulation l5(a) of the relevant Regulations. On the 15^th August, 1969, the appellant received from the Principal of the respondent University a letter expressing dissatisfaction with his work and purporting to extend his probationary period until 31^stDecember, 1969.

In January, 1970, the appellant received a further increment. On 2^ndMay, 1970, the Principal purported to terminate the appellant's probationary appointment summarily, with payment of one month's salary in lieu of notice, in accordance with regulation 16

(a) of the relevant Regulations, which empowers the Principal to terminate a probationary appointment on one month's notice.

The appellant, dissatisfied with his dismissal, complained to the Commissioner of Labour, who referred the complaint to the Permanent Labour Tribunal (hereinafter referred to as the Tribunal) as being "an apprehended Trade Dispute" within the meaning of the Permanent Labour Tribunal Act, 1967.

The Tribunal investigated the matter and gave its decision in a detailed and carefully reasoned “Report" dated 13^th January, 1971. The Tribunal's main recommendations were that the appellant should be considered as having been confirmed in his appointment, and given three months salary in lieu of notice, as is appropriate in the case of the dismissal of a confirmed officer.

The Tribunal did not recommend the appellant's re-instatement. The respondent University accepted the Tribunal's recommendations, and paid the appellant a further two months salary, which he accepted. Notwithstanding this, the appellant then sued the respondent University, claiming a declaration that the purported termination of his appointment was invalid, re-instatement into his former position, Dud alternatively unspecified damages for wrongful dismissal.

The respondent University by its defence pleaded, firstly, that the court had no jurisdiction to entertain the suit as the matters in dispute had been lawfully disposed of by the Tribunal; secondly, it denied that the appellant had been confirmed in his appointment; and thirdly, it claimed that the appellant was lawfully dismissed as a probationary employee.

The learned trial judge held that his jurisdiction to entertain the suit was not excluded by the proceedings before the Tribunal, and this holding has not been challenged before us.

He dismissed the suit on the ground that the appellant had failed to discharge the onus of proving that he had ever been confirmed in his appointment. This latter finding was strongly attacked before us by Mr. Lakha. He submitted that the evidence adduced at the trial raised a strong and unrebutted inference that the appellant had been confirmed in his appointment.

In particular he relied on the fact that the appellant had received two annual increments, and that increments are only paid to confirmed officers. He also relied on the fact that the appellant was retained in his post after the expiry of his original period of probation, and after the expiry of the purported extension of that period, indicating that he became a confirmed officer.

These arguments were also presented to the learned trial judge, who said

“Reading and re-reading these Regulations, I cannot spell out from thee that the fact that the plaintiff was kept on after the expiry of the probationary period as laid down, and that an increment or increments has or have been paid, ipso facto establishes that the officer, who was originally appointed on probation, has in fact been confirmed by the Principal"

After careful consideration, and without in any way wishing to condone the dilatory and unbusiness-like methods adopted by the respondent University in this case, and its disregard of its own Regulations, I am of the opinion, with respect, that the learned judge came to a correct decision in this case, and that his judgment should be affirmed. As to the increments, the Regulations merely say that an employee on probation shall not be entitled to increments.

This does not prevent increments from being paid to a probationer, whether by mistake .or intentionally, and such payment cannot in my view be construed as equivalent to confirmation. As to the continued employment of the appellant after the expiry of his probationary period, it is clear from paragraph (iv) of the terms and conditions endorsed on the appellant's letter of appointment, to which I have already made reference, that such expiry only renders the employee eligible for confirmation, and docs not involve automatic confirmation.

The appellant in this case has established that he was eligible for confirmation, but has failed to establish that he was in fact confirmed in his appointment.

It follows from that I have said that in my view this appeal fails.

The respondent University does not ask for costs. I would dismiss this appeal, and make no order for costs.

DUFFUS, P

I have read and entirely agree with the judgment of Law, J.A., and as Mustafa, J.A. also agrees, the appeal is dismissed with no order as to costs.

MUSTAFA, JA

I agree.