JIMMY DAVID NGONYA v NATIONAL INSURANCE CORPORATION LTD 1994 TLR 28 (HC)

JIMMY DAVID NGONYA v NATIONAL INSURANCE CORPORATION LTD 1994 TLR 28 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Bahati J

F MISCELLANEOUS CIVIL CAUSE NO. 74 OF 1991

15 September, 1992

Flynote

Natural justice - The right to be heard - Applicant dismissed from employment by the

respondent's Board of G Directors on account of an audit report - Need to show

contents of audit report to the appellant before dismissing him.

Natural justice - The rule against bias - General Manager who initiated disciplinary

proceedings against the H applicant was present at the board meeting while

applicant was absent - Whether the board was biased.

-Headnote

The applicant was dismissed from employment as a branch manager of the respondent

corporation. The Board of Directors dismissed him on the basis of an audit report

whose contents were never shown to the applicant to enable him to contradict them.

When the Board of Directors met to I deliberate on the applicant's case, the General

Manager, who had

1994 TLR p29

initiated the proceedings against the applicant and had commissioned the audit, was

present but the A applicant was absent. The applicant applied for certiorari and

mandamus arguing that his dismissal was in contravention of the rules of natural

justice.

Held:

(i) Since the audit report was prejudicial to the interests of the applicant

and it formed the basis of the decision of the Board, it ought to have been shown to

the applicant for his comments B and for an opportunity to contradict its contents;

failure to do that contravened the right of the applicant to be heard;

(ii) Since the General Manager, who was in the nature of a prosecutor, was

present during the deliberations of the Board which dismissed the applicant, the

proceedings of the Board C were vitiated by bias.

Case Information

Application granted.

Cases referred to:

(1) Local Government Board v Arlidge [1915] AC 120. D

(2) Board of Education v Rice [1911] AC 179.

(3) The King v Hendon Rural District Council, ex parte Chorley [1933] 2

KB 307.

(4) Cooper v Wilson [1937] 2 KB 307.

(5) R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 3 All

ER 452.

WC Mwakasungula, for the applicant. E

M A Mapunda, for the respondent.

[zJDz]Judgment

Bahati J: This is an application for orders of certiorari and mandamus to remove into

this Court and quash the decision of the Board of Directors of the National Insurance

Corporation, and to compel F the Board of Directors of the respondent Corporation

to reinstate the applicant and thereby direct it to act with fairness.

Mr Mwakasungula, learned counsel for the applicant submitted that the application

was for the orders mentioned above and it was supported by an affidavit of the

applicant. He went on to state that the G main thrust of the application was that the

respondent in determining the fate of the applicant was in breach of the rules of

natural justice, namely that a party should not be condemned unheard and that no

one should be a judge in his own cause. He elaborated that the Board of Directors in

its letter of H 25 July 1991 through the General Manager stated that the applicant

had been dismissed because the Board of Directors found him guilty and the finding

was according to the audit report. But the audit report from Tanzania Audit

Corporation was never presented to the applicant to contradict the findings in it. The

applicant was therefore not accorded the I

1994 TLR p30

BAHATI J

A opportunity to comment or see the report nor did he appear at the Probe

Committee. Mr Mwakasungula submitted that as a branch Manager, the applicant was

entitled to know the nature of the investigation at his branch. He argued that the

applicant was therefore condemned unheard which was a break of the rules of natural

justice. Mr Mwakasungula referred the court to the cases of B Local Government

Board v Arlidge (1) and Board of Education v Rice (2) in support of his argument.

The second limb of Mr Mwakazungula's contention was that the Board of Directors

when deliberating C upon the case of the applicant was going against the second rule

of natural justice in that the Board was a Judge in its own cause. He referred to

annexure R2 and continued that since it is the General Manager who initiated the

proceedings and commissioned Tanzania Audit Corporation to carry out D

investigations at Singida Branch it was wrong for the General Manager and the

Management Committee to deliberate the case of the applicant on 25 July 1991

because, he submitted, any decision of the Board of Directors taken in the presence of

the General Manager but in the absence of the applicant amounted to the fact that the

General Manager and the Management Committee took E part in the deliberations

of the Board. Mr Mwakasungula referred to the cases of The King v Hendon Rural

District Council ex parte Chorley (3) and Cooper v Wilson (4) and R v Barsnley

Metropolitan Borough Council ex parte Hook (5). He submitted that the General

Manager and his team were present in the Board Meeting which decided the fate of

the applicant and that on the F authorities cited above he was praying for the grant

of the application by the Court.

In reply, Dr Mapunda, learned counsel for the respondent, submitted that a charge

was served on G the applicant which contained several disciplinary offences. The

applicant was given an opportunity to reply to the charge and he did actually reply.

Then on the basis of the charge and reply the Board of Directors commissioned

auditors to verify the contradictions between the charge and reply. The auditors

submitted their report to the Board and the Board considered the charge, reply and

the H auditors' report and decided to dismiss the applicant. Dr Mapunda contended

that although the applicant was not given the opportunity to reply to the audit report,

the audit did not contain anything new which the applicant was not aware of, and

that the report only confirmed allegations in the charge. Dr Mapunda submitted that

there was therefore no contravention by the Board of the rules of I natural justice of

the right to be heard.

1994 TLR p31

BAHATI J

With regard to the presence of the General Manager in the Board meeting, Dr

Mapunda submitted A that it was true that the General Manager attended the Board

meeting of 25 July 1991 but that he was only there as part of the management and did

not take any part in the Board's deliberations since he is not a Board member. He said

that his presence was only procedural because the management B was always invited

in the Board meeting. He submitted that the decision to dismiss the applicant

summarily was made by the Board members only. Dr Mapunda, however, conceded

that he was aware of the rule that mere presence of an interested party in the absence

of the other party would vitiate the proceedings. He said that he had read the

authorities cited by his learned friend and that he C was in agreement with them.

In a further reply, Mr Mwakasungula said that according to the minutes of 25 July

1991 the General Manager was present together with his management team when the

fate of the applicant was being D discussed but that the minutes were silent as to

who took active part in the deliberations. He prayed that the minutes be quashed on

the basis that the applicant was not there. Mr Mwakasungula also submitted that the

letter of dismissal has two limbs, one concerning the charge and the other concerning

the findings of the audit, and this audit report is the one which weighed most on the

E Board in coming to the conclusion to dismiss the applicant. He submitted further

that if there was nothing new then the Board should have acted on the charge and

reply only.

The questions to be answered in this application are mainly two. These are, (1)

whether the applicant F was given the opportunity to present his case properly and

(2) whether it was in order for the General Manager to attend the Board meeting in

the absence of the applicant. With regard to the first question it is my opinion that

the applicant was not given an opportunity to present his case in full G before the

Board because he was not shown the audit report for him to comment on. Since the

audit report formed the basis of the decision of the Board of Directors, it was

necessary to serve a copy of the report to the applicant for his comments. Then the

comments of the applicant would be taken to the Board so that the Board would then

look both at the audit report and the comments of the H applicant. The cases of

Board of Education v Rice (2) and Local Government Board v Arlidge (1) cited above

are relevant in this case more so because they clearly state that the parties in the

controversy should be given a fair opportunity to correct or contradict any relevant

statement in any information obtained by a Board I

1994 TLR p32

BAHATI J

A which is prejudicial to their view. Certainly in this case the audit report was

prejudicial to the view of the applicant. It ought to have been given to him for his

comments. The Board, therefore, contravened the rule of natural justice namely the

right of the applicant to be heard.

B Secondly, with regard to the second question, the Board was again in breach of

the rules of natural justice since the Board deliberated on the case of the applicant in

the presence of the General Manager who was in the position of a prosecutor. The

case of R v Barnsley Metropolitan C Borough Council, ex parte Hook (5) cited by Mr

Mwakasungula is relevant. That case held inter alia that `the local authority was in

breach of the rules of natural justice since the Committee heard the market manager's

evidence in the absence of the applicant or his representative, and the market

manager, who was in the position of a prosecutor, had been present at the

deliberations of the D committee when it came to its decision'.

It has been stated from the Bar that there is no evidence of any participation in the

deliberations of the Board by the General Manager who was not a member of the

Board. But the case cited above does not make it necessary that the General Manager

should participate in actual fact. It is enough if E he is in the nature of a prosecutor

and he is present during the deliberations of the Board.

I agree with the decisions reached in the cases of R v Barnsley Metropolitan Borough

Council, ex parte Hook (5) and Local Government Board v Arlidge (1) and Board of

Education v Rice (2) cited above. Indeed Dr Mapunda for the respondent said that he

too agreed with the decision in R v Barnsley Metropolitan Borough Council (5) which

hold that proceedings would be vitiated by F presence of an opposing party.

For the above reasons, I grant this application. I hold that the decision of the Board of

Directors was vitiated by a breach of the rules of natural justice. I therefore quash the

Board's decision of G dismissing the applicant. The applicant is to be regarded still

the employee of the respondent corporation and to have been such employee all the

time because the decision to dismiss him has been quashed. I command that the

respondent reinstate the applicant forthwith and pay him all his salaries and other

benefits because the applicant is and has always been the employee of the H

respondent.

1994 TLR p33

A