NATIONAL BANK OF COMMERCE v RISASE NDAMA 1997 TLR 282 (HC)

 NATIONAL BANK OF COMMERCE v RISASE NDAMA 1997 TLR 282 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Bubeshi J

G MISCELLANEOUS CIVIL CAUSE 38 OF 1996

3 October 1997

Flynote

H Civil Practice and Procedure - Appeal - Contention that trial court lacked

jurisdiction - Such contention can not be raised for first time at the appellate stage -

Section 9 Civil Procedure Code 1966.

-Headnote

The appellant filed the present appeal against a judgment of the regional magistrate

who had held that the respondent had been unlawfully dismissed. The appellant

contended that as the respondent I had been a

1997 TLR p283

member of appellant's management cadre the matter should have been heard in the

Industrial A Court.

Held:

Objections to the jurisdiction of a court had to be taken at first instance and in the

present case, as there had been no objection recorded to the jurisdiction of the trial

court, the matter could not be determined in the appellate court. Section 19 of the

Civil Procedure Code 1966 was very clear on B this aspect.

Case Information

Appeal dismissed.

Lyimo for the appellant. C

Mapunda for the respondent.

[zJDz]Judgment

Bubeshi J:

The appellant National Bank of Commerce has, through the services of Mr Lyimo

learned Counsel filed this appeal to challenge the judgment delivered by Chillonji

PRM on 10 January 1996. The trial D court after hearing the matter had declared

that the summary dismissal imposed by the appellant or the respondent was wrongful

and of no effect, and that the respondent was entitled to arrears of salary and other

emoluments from September 1991 to 15 June 1992 and full wages from 15 June 1992

until date of re-engagement. The appellant was also condemned to pay costs. The

appellants E were aggrieved hence this appeal.

The challenge the decision, the appellant filed four grounds:

1. That the Honourable Resident Magistrate erred in law and facts in not

satisfying himself with the jurisdiction of the Court before hearing the suit. F

2. That the Honourable Magistrate erred in law and in facts in finding

that the respondent was not negligent in causing the appellant to suffer loss in the

sum of Tsh 3,104,817/45. G

3. That the honourable trial magistrate erred in law and facts in holding

that the respondent was wrongfully dismissed.

4. That the honourable trial court erred in law and facts in not weighing

the evidence of both parties and decide the suit in the balance of probabilities. H

Parties were ordered to file written submissions and they did so timely. Dr Mapunda

appeared for the respondent.

In their first ground, the appellants submitted that the trial court lacked jurisdiction

to hear the I matter. They contended that the respondent having being found to

belong to the management cadre

1997 TLR p284

BUBESHI J

A of the appellant, could only challenge his termination at the Industrial Court, in

terms of s 4 of Act 41 of 1967, as amended. The appellants contend that the

respondent was wrong to file his suit in the ordinary Courts. The appellants are also

saying that it is upon the trial court to satisfy itself that it B is seized with

jurisdiction to try a matter. In the alternative the appellant submitted that the trial

court had no jurisdiction to hear the matter as no dispute was raised by the

respondent concerning the breach of conditions of contracts.

C As regards grounds two, three and four, the appellants argued them together. In

their submission the appellants contend that the respondent acted negligently when

he stopped PW3 Anthony Mhoja from taking the disputed cheque to the drawer for

verification and instead directed PW3 to the office of the branch accountant who was

not conversant with fraud and investigation. The appellants insist D that the

respondent was negligent in that he stopped his subordinate PW3 from discharging

his duties, that he misdirected PW3 to take the disputed cheque to a person not

responsible with investigation that he never bothered to make a follow up in the

matter until the money was finally paid out to a wrong person, thus occasioning loss

to the appellants. They submit therefore that the E respondent's dismissal was

proper.

The respondent on his part has responded in the following manner.

F On the issue of jurisdiction, the respondent submitted that the appellants

contention that the trial court lacked jurisdiction cannot be entertained at this

appellate stage. That this matter was never raised during trial and that in terms of s 79

of the Civil Procedure Code 1966 objections as to jurisdiction must be taken in the

trial court at the earliest opportunity before settlement of issues. I am minded to agree

with the respondent on this issue. Section 19 of the Civil Procedure Code 1966 G is

very clear, it reads;

`No objection as to the place of suing shall be allowed by any appellate or

revisional Court unless such objection was taken in the country first instance at the

earliest possible opportunity and in all cases where issues are settled H at or before

such settlement, and unless there has been a consequent failure a justice.'

This suit was filed on 13 July 1992. Perusal of the Court record does not show that

any objection was raised by the appellant as to the trial court's jurisdiction. Judgment

was delivered on 10 I January 1996. I think it is highly improper for the appellant to

raise the issue

1997 TLR p285

BUBESHI J

of jurisdiction at this stage. The appellant's contention flies in the face of the

provision of s 19 sited A above and at best it is an after thought. The appellant has

submitted that it is for the trial court to satisfy itself that it has jurisdiction to try a

matter. With respect I hold contrary views. It is for the party raising the issue to

address the Court and the latter to rule whether or not it has jurisdiction. B

On the premises I am satisfied that this ground of appeal lacks merit and I dismiss it

without further ado.

On grounds two, three and four the respondent has submitted that it was the Branch

Accountant who verified the cheque and credit slip. That it was this Branch

Accountant who authorised payment after being satisfied that the cheque was in

order. Respondent denied being negligent or C responsible for the loss.

On this issue I have had time to revisit the evidence or record. On the fateful day, the

plaintiff/respondent happened to be visiting the city branch National Bank of

Commerce where he met the witness PW3 Anthony Muhoja arguing with a customer

over a cheque. PW3 was D suspicious and had wanted the customer to go and verify

it with the drawer. The respondent then referred the two to the Branch Accountant

one Yassin who, it would appear, ultimately cleared the cheque and authorised that it

be paid out. Now the issue here is, who between the two occasioned loss to the

appellant. Is it the respondent or the Branch Accountant? Mark you the appellant

never E called this Yassin to testify. Can we say that what the respondent did was

not reasonable in the circumstances. I think not. If there was any investigation to be

done in that direction that would definitely come from Yassin but against this Yassin

was not called. We do not know what happened but what is clear is that the cheque

was cleared by Yassin and payment authorised. In fact even F DW1 told the Court

that he did not know why the respondent was dismissed and that he was not

responsible for the loss of the money. The appellant in their submission are imputing

ill motive on the part of the respondent. Having gone through the evidence tendered

by all witnesses including G DW1, this Court does not share that conclusion. There

is no sufficient evidence on record to hold the respondent negligent, in what he did

by referring both DW3 Anthony Muhoja and the customer to the Branch

Accountant. H

In the final event this Court upholds the decision of the trial court and dismiss the

appeal with costs. I

1997 TLR p286

A